Toronto Criminal Lawyers Blog

During the course of a criminal trial the prosecution may try to lead character evidence about the accused individual. For legal purposes, the word “character” refers to a generalized description of a person’s disposition, or that person’s disposition in respect of a general trait such as honesty, temperance or peacefulness. Character evidence is evidence that indicates that the defendant has acted a specific way before, for example dishonestly or violently, and asks the jury to infer that that prior behaviour allows for a  a negative inference to be drawn in respect to an accused’s character with respect to a particular trait. The jury is then asked to specifically infer that that the defendant acted in accordance with that character trait in the incident before the court.

As a general rule, courts will not allow the prosecution to lead evidence about the character of the defendant during the course of his or her criminal trial. The danger, as the court perceives it, is that the jury will use evidence of the defendant’s bad character to infer that the defendant is guilty. There is no logical connection between a person having a bad character and that same person having committed the particular crime at issue. The truth is that lots of people display negative characteristics such as anger, aggression, sexual deviance, dishonesty or selfishness but never commit crimes. However, it is human nature that a jury presented with evidence that a defendant possesses some of these characteristics may be prejudiced against the defendant. Such prejudice could cloud the jury’s judgment and cause them to enter a guilty verdict where one is unsupported by the facts. Because of this, character evidence is generally inadmissible.

There are, however, four exceptions to the rule that character evidence is inadmissible at trial.

The first exception to the rule against character evidence is that the evidence is relevant to a material issue at trial. If the evidence is relevant to a material issue then the jury is not being asked to use evidence of the defendant’s bad character to infer that the defendant is guilty. Rather, the evidence is being tendered because it does directly support another issue in the case. For example, in R. v. Merz, the accused and his wife were in a heated argument that ended with the wife being shot three times. Merz’s defence was that his son had fired the first fatal shot and that he had picked up the gun and fired the second two shots in an effort to shield his son from criminal prosecution. The prosecution maintained that Merz fired all three shots. As part of their case against him, the prosecution relied on the testimony of two witnesses who stated that the victim told them that the defendant had made death threats against her in the past. The evidence was admitted and Merz was convicted at trial. On appeal, Merz argued that the trial judge should have told the jury that they could not use evidence of the previous threats to infer that the defendant was a violent person and therefore more likely to have murdered the deceased. The judge in the appellate court found that the trial judge was correct in admitting evidence of the statements because those statements were not intended to create an inference that the accused was a bad person. Rather, the more natural and powerful inference to be made from the testimony is that the defendant had motive to kill his wife. Even though such statements may have had a secondary role as character evidence, their more significant role in the trial was to lend support to the material issue of motive and for that reason the court could admit them as an exception to the rule against character evidence.

The second exception to the rule against character evidence occurs when the accused leads good character evidence that “puts his or her character at issue”.  Usually the defendant would want to refrain from putting his or her character at issue as this opens the door to allow the prosecution to tender negative character evidence. However, if the accused is of particularly good character or reputation, he or she may choose to enter character evidence to suggest either that his or her testimony is credible and reliable or to suggest that it is unlikely that he or she would have committed the crime. When the accused leads good character evidence to support either or these propositions, the court will allow the prosecution to admit negative character evidence in the interest of fairness so that the evidence is not unfairly or inaccurately skewed in favour of the accused.

The third exception to the rule against character evidence is similar act evidence. Similar act evidence is evidence that the defendant has committed a similar crime or acted similarly in the past. For example, if the defendant is on trial for rape, similar act evidence could consist of evidence that the defendant had raped women in the past using the method indicated in the evidence before the court pertaining to the case at hand. Criminal defence lawyers are very wary of similar act evidence. Practitioners will often say that the decision to admit similar act evidence is as close as a judge will usually come to usurping the role of the jury and making a decision on the outcome of the case. This is because similar act evidence is very prejudicial. The judge’s decision to admit similar act evidence will have profound repercussions on the case. If this type of evidence is admitted improperly a serious miscarriage of justice may occur.

In R. v. Handy the Supreme Court of Canada set out clear guidelines to determine when the court should admit similar act evidence. Here the court cautioned that “there being no offence of being a bad person” the criminal justice system does not “try people for who they are but for what they have done”. However, it pointed out, that principle clashes with another common sense proposition, which is that one of the best ways of determining what a person did on one occasion, is to know how he or she has acted on occasions where the circumstances were similar. The test from R. v. Handy asks the court to consider whether the evidence suggests a propensity to act a certain way with sufficient precision to make the evidence worth receiving despite its prejudicial effect. The court starts from the position that the evidence is inadmissible. The court then considers the similar act evidence. Evidence which suggests a general propensity to engage in the behaviour before the court is insufficient to admit the evidence. For example, in a rape case evidence of past sexual deviance or even past rapes would be insufficient. Specific propensity is required. To continue with the rape example, a specific repeated series of actions or a specific victim profile may be sufficiently precise to suggest the evidence should be admitted. In order to determine whether the evidence is precise enough the court will consider “the objective improbability of coincidence”. In other words, the likelihood that the similar act evidence and the evidence in the case at bar could be the same and not have been committed by the same person. For example, in a sexual assault case, the complainant states that she was drugged at a nightclub, raped and then released. The prosecution wants to admit evidence that the accused was convicted in the past of drugging a girl in a nightclub, raping her and then releasing her. This evidence would probably not meet the threshold required to admit similar act evidence because the behaviour is not particularly unique. However, if the same drug was used to subdue the victim in both cases and it was a very rare drug that was difficult to obtain, then the previous incident is more likely to be admissible. On these new facts, it is much more improbable that the connection between the similar act evidence and the facts before the court are simply a coincidence.

In addition to precision, similar act evidence must also have a high degree of probative value in order to offset the prejudicial effect it will have on the jury. In other words, the evidence must be very strong in order for the judge to admit it despite the fact that invites the jury to draw a negative inference from the accused’s history that he or she is more likely to have committed the offence.

The fourth and final exception to the rule against character evidence occurs in situations where the accused leads character evidence to suggest that a third party committed the offence. In general, when the accused and his or her criminal defence lawyer decide to point the finger at someone else using character evidence the defence invites a comparison between the accused’s character and the character of the third party. However, when the defence uses facts to point the finger to a third party, it does not open the door for the prosecution to tender character evidence about the accused. In other words, if the defence leads evidence that a third party has acted a certain way in the past and try to use that evidence to suggest that the third party committed the crime at hand, then the defendant puts his or her character at issue. However, if the accused’s criminal defence lawyer points to facts (such as the location of the crime in relation to the third party, the third party’s lack of an alibi, or the third parties proximity to the events surrounding the crime), the defendant’s character is not put at issue and the prosecution cannot lead character evidence against the accused as a result.

The rule against character evidence is an important tenant of our criminal justice system. Without the rule against character evidence, individuals would continue to be punished for past crimes or past bad behaviour indefinitely. People who have displayed bad character traits in the past or who had engaged in past criminal behaviour but have served their debt to society should not be punished by the criminal justice system for what they did in the past with new criminal sanctions. Individuals should only be punished by the criminal justice system if the prosecution can prove beyond a reasonable doubt on the facts that the defendant committed the crime at question.

Call Kostman and Pyzer, Barristers, Toronto criminal defence lawyers who will defend you aggressively and fight for your rights!

A Peacebond is a court order requiring a specific individual to “keep the peace and be of good behaviour”. A peacebond is not a conviction and it will not appear on your criminal record.  However, a peacebond can restrict your liberty. Sometimes, in addition to requiring that the recipient “keep the peace and be of a good behaviour”, a peacebond will also set out specific conditions intended to protect a person or a specific type of property. Generally speaking, a s. 810 peacebond is Canada’s version of a “restraining order”. The most common conditions contained in peacebonds require that the recipient not be within a specific distance of a particular person or that person’s family, refrain from going near a person’s property, not communicate with a specified person or that person’s family, and/or that the recipient not be in possession of any weapons or firearms. A peace bond can be issued either under s. 810 of the Criminal Code or under the common law.

Section 810 Peacebonds

Section 810 allows any individual to apply to the court for a peacebond against any individual whom they reasonably believe poses a threat to their personal safety, the safety of their spouse or child, or their personal property. An application can be made at any time and it is not necessary for the applicant to initiate criminal proceedings against the potential recipient. The main requirement is that the applicant fears, on reasonable grounds, that the potential recipient may hurt the applicant, in some way. This includes not only physical harm but also harm of a sexual nature and damage to property. Section 810 specifically requires that the applicant’s fear be based on “reasonable grounds”. A judge will determine whether the applicant’s fear is reasonable on a case-by-case basis taking into account several factors such as: any threats made by the potential recipient, any past violent behaviour on the part of the potential recipient towards the applicant or others, the relationship between the applicant and the potential recipient, and any other relevant factor. If the judge is satisfied that it is more likely than not that the potential recipient poses a harm to the applicant, the judge will order that the defendant enter into a peacebond to keep the peace and be of good behaviour. Once the judge is satisfied that a s. 810 peacebond should be issued, i.e., that the recipient poses a threat to the applicant in some way, he or she is obligated to consider including conditions limiting the recipients ability to interact with the applicant, communicate with the applicant, or posses any weapons or firearms.

Section 810 also includes special rules for applicants who reasonably fear that another individual may commit an act of terrorism, a sexual offence against the applicant, or inflict serious personal injury to the applicant.

Common Law Peacebonds

A common law peacebond, on the other hand, can only arise in the context of a criminal trial. Every judge has what is known as a “common law power” to order that a defendant enter into a peacebond. Thus, even if a judge is not satisfied beyond a reasonable doubt that a defendant in a criminal matter is guilty, that judge may issue a peacebond against the defendant to protect the complainant from any future harm or retaliation for laying criminal charges. In situations like this, the peacebond is not a finding of guilt and will not appear on the defendant’s criminal record. In minor cases, the Crown Attorney’s office may withdraw a charge in exchange for the defendant agreeing to enter into a peacebond. However, according to the Crown Policy Manual, the Crown Attorney’s Office will agree to a peacebond as an acceptable remedy for domestic abuse only in “the most unusual of circumstances”.

A section 810 peacebond can be issued for a maximum of one year, while the duration of a common law peacebond is at the discretion of the court. The conditions contained in the peacebond can be relaxed at any time during the life of the peacebond. A criminal defence lawyer can help you to negotiate with the Crown Attorney’s Office to relax the terms of either type of peacebond. If a peacebond is ordered against you and you refuse to enter into the peacebond (by refusing to sign it) you can be charged under the Criminal Code and liable to 12 months imprisonment. Failing to comply with the conditions of a peacebond is also a criminal offence.

One of the first questions a client asks whcn charged with Domestic Assault is if there is any way that they could “get” a Peace Bond. Of course, in most  cases of domestic assault the Peace Bond is a happy ending. The charge is withdrawn. The accused avoids a criminal record. Life returns to normal. In some cases the parties have reconciled. Often, the relationships that gave rise to the allegations, cannot survive the test of bail orders restricting contact and the fact that the complainant made the accusation to the police.

The reality in the present criminal justice system is that Peace Bonds are very hard to obtain in the context of a domestic assault allegation. In some jurisdictions, it is almost impossible to obtain a Peace Bond prior to a trial date. On the trial date, where the prosecutor is of the view that the evidence in support of the allegation is not strong enough for a Court to convict, the client may be offered a Peace Bond. The nastier the allegation, the more likely that the prosecutor is going to let the Court make the call rather that be critized later if the Peace Bond creates a controversy.

Generally speaking, given the current political landscape of the offence of Domestic Assault, a Peace Bond is only available in the most minor cases. Threats of violence without any violence, or history of violence, may qualify,. This is  especially true if the allegation is of a he said she said nature, and unsupported by corroborative evidence. In these cases, the prosecution is aware of the fact that a conviction is unlikely.

A Peace Bond may also be available if the nonconsensual touching is viewed as very minor, and there is no history of violence between the parties. A push. Sometimes a slap. The fact that the accused has some indication of bruising can also be a factor which may influence a prosecutor to exercise their discretion to agree to a Peace Bond. The accused’s bruises would advance his defence that the complainant was the aggressor and he was acting in self-defence.

Most courthouses in the Greater Toronto area have one or two domestic assault court days wherein those individuals charged with domestic assault related offences, appear. In the current prevailing politic individuals charged with domestic assaul are generally offered a quick exit from the justice system. Where there is no history of domestic violence,and so long as there is no significant injury to the complainant, the average accused person is offered a conditional discharge (a guilty plea which is not technically a criminal record). The bail is varied to allow the parties to reconcile (with the complainant’s written consent). After the person completes the four month one night per week Partner Assault Response Spousal programme (anger management in a spousal context), they are placed on Probation.

At Kostman and Pyzer, Barristers, we are well informed, experienced, and familiar with the politic underlying Domestic Assault prosecution policies.  We can’t promise you a Peace Bond, but we can advance a strong argument that one should be available in the particular circumstances of your case.

Criminal defence lawyers are often asked to explain the difference between first-degree murder, second-degree murder, and manslaughter. Even though the general public hears these terms all the time – on the news, in the media, and on television crime shows – people are often confused about the difference between the three offences.

First-degree murder, second-degree murder, and manslaughter are all types of homicide. A person commits homicide when, directly or indirectly, by any means, he causes the death of another human being. However, the law recognizes that within the spectrum of possible homicides, there are various different degrees of culpability. Thus, the broad category of homicide has been divided into three subcategories: first-degree murder, second-degree murder, and manslaughter. Each subcategory reflects the level of culpability that we impute to the nature of the homicide.

According to s. 231(2) of the Criminal Code, first-degree murder refers to a murder that is both planned and deliberate. A murder is planned if it was conceived of and thought out before it was carried out. A a murder committed in the heat of an argument, where the murderer had absolutely no intention to kill the victim before the argument began, would not be considered planned. A murder is deliberate if the acts involved were intended and purposeful.  The plan to kill need not be elaborate or complicated and the deliberation need not be lengthy. All that matters is that you planned to kill the person at some point and that you deliberately carried out your plan. Though planning and deliberation usually go hand in hand, this is not always the case. For example, if you planned to kill someone by running them over with your car, and then by coincidence, you accidentally ran over them while you were driving your car to the store one day, the murder would have been planned but not deliberate. Thus, the Supreme Court of Canada has ruled that both planning and deliberation must be present for the murder to be considered first degree. According to the Criminal Code, contract killing is always planned and deliberate.

There are two reasons that a homicide could be categorized as first-degree murder regardless of whether it was planned or deliberate. According to s. 231(4), murdering an officer of the peace is always first-degree murder. For the purposes of this section, “officer of the peace” includes any member of the police force or anyone who works at a prison In addition, a murder is considered first-degree murder if it is committed in the course of the commission of an offence listed in ss. 231(5) or 231(6). The listed offences are hijacking, sexual assault, sexual assault with a weapon, aggravated sexual assault, kidnapping, forcible confinement, hostage taking, terrorism, intimidation, or any offence committed on behalf of a criminal organization.

Second-degree murder is any murder that is not first-degree murder. Section 231(7) of the Code states that any murder that cannot be characterized as first-degree, is considered second-degree murder. However, to be second-degree murder, the homicide must be characterized as “murder” as opposed to “manslaughter”. A homicide is categorized as a murder if the defendant intended to kill the victim. Thus, second-degree murder is a catchall category for all intentional homicides that do not fall under the specific categories of first-degree murder.

Manslaughter is the final category of homicides. Section 234 of the Criminal Code tells us that any culpable homicide that is not murder is manslaughter. Since “murder” is defined as intentional killing of a human being, any murder committed without intent to kill is manslaughter. The most common types of manslaughter criminal defence lawyers in the Toronto area encounter are unlawful act manslaughter and manslaughter by criminal negligence. The former refers to situations where an individual does something illegal that unintentionally leads to another person’s death. For example, if you were to break the law by carelessly firing your gun in a public place and you unintentionally killed someone, you could be charged with the unlawful act manslaughter. There are various mental states that mitigate in an accused person’s favour in situations where there is less than an actual intent to kill. Criminal negligence requires that the person’s act or omission qualified as a “marked departure” from the standard of behaviour expected of a reasonable person. The offence also requires that death or bodily harm was a foreseeable consequence of the defendant’s act or omission. The foreseeability requirement means that a reasonable person in the defendant’s place would have realized that the actions or omissions perpetrated would put another individual’s life in danger. An omission can only be considered criminal negligence if the defendant had a positive duty to act and failed to do so. The law does not impose a duty on individuals to go to the aid of others in distress. If a passerby failed to act to save a drowning swimmer it would not be viewed as criminally negligent since the passerby has no legal duty to go to the swimmer’s aid.

Under s. 232, if a person commits a murder in a heat of passion caused by provocation, the murder charge will be reduced to manslaughter. Provocation is defined as a wrongful act or insult that would deprive an ordinary person of the power of self-control.  Drunkenness or any drug induced mental state that would affect an individual’s ability to form the requisite intent to kill, would reduce murder to manslaughter.

Though the distinctions between first-degree murder, second-degree murder, and manslaughter are meant to distinguish between more and less blameworthy behaviour, all three offences carry serious penalties. Individuals found guilty of first or second-degree murder will be sentenced to life in prison. A person convicted of first degree murder is only eligible for parole after serving 25 years of their life sentence. A person convicted of second-degree murder will generally be eligible for parole after 10 years imprisonment. An individual convicted of manslaughter, the least “serious” type of homicide, is still liable to a maximum penalty of imprisonment for life. In cases where manslaughter was committed using a firearm, the offence also carries a minimum sentence of four years. In other cases, there is no minimum sentence for manslaughter and the penalty is left to the discretion of the trial judge.

Usually a trial ends with a finding of either “guilty” or “not guilty”. However, sometimes the court will find an individual “not guilty by reason of mental disorder”. These individuals actually committed the acts they are accused of, but because of some sort of mental disorder are unable of possessing the “guilty mind” the law requires to find an individual guilty. Thus, they are deemed Not Criminally Responsible for their actions, or “NCR”.

Not every person with a mental illness will be able to raise a successful NCR defence. In fact, NCR defences are only available to individuals who have certain forms of mental illness. The requirements an individual must meet to raise a successful NCR defence are outlined in the Criminal Code of Canada.

According to the Criminal Code, every individual is presumed to be sane under the law, unless proven otherwise. In order to raise a successful NCR defence, one party to the trial must rebut that assumption by showing that the individual’s mental illness has all of the components required by statute to qualify the individual as NCR. The first requirement is the existence of a mental disorder. The second requirement is incapacity on one of two grounds as a result of that disorder.

The meaning of the phrase “existence of a mental disorder” has received a lot of attention from judges and legal scholars. A mental disorder is traditionally defined as a “disease of the mind”. According to the Supreme Court of Canada in the 1980 case Cooper v. The Queen, a “disease of the mind” is any illness, disorder or abnormal condition that impairs the human mind and its functioning. Thus, a disease of the mind is any medically recognized disorder, but does not include self-induced mental states (through drugs or alcohol) or transitory mental states (such as extreme anger which passes).

However, just because an individual possesses a “disease of the mind” does not mean they will necessarily be able to raise a successful NCR defence. In order for the defence to be successful, the court must find that one of two kinds of incapacity defined in the Criminal Code occurred as a result of the disorder and were present at the time of the event in question. The first form of incapacity is an inability to appreciate the nature and quality of the act. In order to understand the nature and quality of an act, an individual must be able to know what he or she is doing and understand the natural consequences of the act. It is not sufficient that the accused does not understand the legal consequences of the act or has an inappropriate emotional reaction to the event. Thus, for example, if the accused was to shoot someone, he could raise a successful defence of NCR if he did not know he was shooting a person or was unable to appreciate that shooting a person could result in that person’s death. However, if the accused simply did not believe that he could be arrested / punished for shooting another person or if he did not feel any guilt or remorse for shooting the person, he would not have a defence of NCR.

The second form of incapacity is that the accused is unable to appreciate that an act is morally wrong. According to the Supreme Court in R. v. Oomen, in order to be considered sane and therefore criminally responsible, the accused must have the capacity to know that the act is wrong according to the ordinary moral standards of a reasonable member of society. In other words, if the accused lacks the basic capacity to understand that society would consider their actions morally wrong, the NCR defence may be available to him. Thus, an individual diagnosed as a psychopath, who does not believe that murder is morally wrong but has the capacity to understand that society believes that murder is morally wrong would not be eligible for this defence. On the other hand, an individual diagnosed with schizophrenia who believes that the individual they killed is the devil and god instructed them to kill that devil, may be able to benefit from the NCR defence, because they believe that what they are doing is actually morally right.

When an individual is found to be Not Criminally Responsible and therefore not guilty by reason of mental disorder they are not necessarily released back into the general population. A Provincial Review Board comprised of experts in the area will review the verdict and determine whether the individual should be put into the NCR stream. Upon determining that an individual is NCR, the Board will decide what action should be taken in response to the individual’s actions. Since the individual is not considered morally to blame for their actions, the Board will try to make the least intrusive recommendation possible.  The Board may choose to grant an absolute discharge, a conditional discharge (psychiatric releases, not sentence dispositions), or may decide to detain the individual in a psychiatric hospital. If the individual is granted an absolute discharge they are free to go; However, all other dispositions require a mandatory review every 12 months by the Board. Individuals detained in psychiatric hospitals are given indeterminate sentences to be reviewed on a regular basis by the Board.

There are several pros and cons to an NCR defence. On one hand, individuals who are truly mentally ill are directed into institutions designed to deal with their medical conditions instead of being placed into the regular jail population. On the other hand, psychiatric hospitals are often overcrowded, under staffed, and unable to provide the proper treatment NCR individuals would benefit from in the long run. The NCR defence can be raised by the by a criminal defence lawyer, however it can also be raised by the Crown or by the court (i.e., by the judge), if any one of them believe the accused individual should be put in the NCR stream. Defence lawyers therefore can be called upon to argue either side of the NCR defence depending on what is in the best interest of their client.

Kostman & Pyzer, Barristers, Toronto lawyer Jonathan Pyzer made news recently at the sentencing hearing of a young Toronto man convicted of violently sexually assaulting a woman he met in a Toronto night club. Mr. Pyzer, who represented the accused at the sentencing hearing, impressed Justice Hamilton of the Superior Court of Justice with his thoughtful approach to his sentencing submissions.

Mr. Pyzer suggested to Justice Hamilton that a sentence at the lower range of the sentencing spectrum would be appropriate given the nature of the offence and his client’s strong prospects for rehabilitation. Justice Hamilton was impressed by Mr. Pyzer’s astute ability to reconcile the disparate aspects of the case.

The Toronto Sun included an article on the case which commented on Mr. Pyzer’s role in achieving a fair sentence for the accused. The portion of Justice Hamilton’s decision where he refers to Mr. Pyzer is quoted in the Sun. “I don’t relish sending anyone to jail,” Justice Hamilton remarked, “I found Jonathan Pyzer to be refreshing…and I agree with his submission”. Justice Hamilton followed Mr. Pyzer’s recommendation, securing the accused the lowest possible sentence in the circumstances.

As criminal defence lawyers, we have been appearing in Toronto courts and courts in the Greater Toronto Area for so long that proper court etiquette has become second nature to us. However, many of our clients are appearing in court for the first time and are understandably nervous about the process. Criminal defence lawyers are often asked a lot of questions about court protocol by accused individuals as they prepare to appear in court. Behaviour that passes as polite in ordinary life is often considered inappropriate in the courtroom. It is best to think of the courtroom as a formal environment rather like a classroom, Church, Temple, or Mosque, with its own rules of etiquette. The following list of rules is like an orientation guide to courtroom etiquette which can help make that first day in court much less intimidating.

1) Show Up

When you are arrested, the police will provide you with a promise to appear notice. Your promise to appear will list the courthouse, courtroom, date and time of your first expected court appearance. It is very important that you attend your first court date. Judges in and around Toronto prefer to avoid unnecessary delay and look favorably upon defendants who show initiative in expediting the legal process from court appearance to court appearance. More importantly, if neither you nor your lawyer show up for your first appearance, the judge will issue a warrant for your arrest on a charge of “failure to appear in court” and you will likely be arrested.

2) Arrive On Time (But Be Prepared To Wait)

The time stated on your promise to appear indicates the time that the court opens to hear your matter and the matters of other individuals scheduled during the same block of time as you. When you arrive at the courtroom there will be a list (usually hanging outside the door of the courtroom) called a “docket”. The docket will list all of the people that have been told to appear in that courtroom at that time on that day. When court begins the Crown Attorney will introduce themselves and will begin to read names off of the docket one-by-one. There is no way to know for certain when your name will be called so it is important to arrive on time but be prepared to wait for your name to be called.

3) Find a Lawyer As Soon As Possible

The first step to proceeding with your matter is to “retain counsel” — which is a formal way of saying “hire a lawyer”. This is the first and most important obligation on you, the defendant, throughout the trial process. As said before, the court looks favourably on individuals who show initiative in proceeding with their matters. The best way to show initiative from the get-go is to retain counsel as soon as possible. Generally, it will impress a judge if you have retained counsel by your first or second appearance. If you delay too much in retaining counsel, this may prejudice your case down the road.

4) Sit in the Public Benches

Every courtroom will have a number of benches at the back which are open for public seating. There is also special seating at the front reserved for lawyers and officers of the court. Usually there will be a short wooden barrier or some other sort of divider between the public seating and the reserved seating. Be sure to sit in the public seating and avoid entering the front area of the courtroom until your name is called.  Sometimes there is not enough room in the public benches for all the people appearing in court that day. In that case, it is best to wait just outside the doors to the courtroom and you will be paged over the intercom or an officer will call you in when it is your turn. If there is room in the courtroom it is important to sit inside. If there is room inside, the court will assume that you are either sitting in the courtroom or you have chosen not to appear in court that day. The clerk of the court may not go out of their way to call your name, so if you do not hear your name called, a warrant may be issued for your arrest on a “failure to appear in court” charge.

5) Stand Up

When the judge or justice of the peace presiding over the court that day enters or exits the courtroom, the clerk (who sits right in front of the judge) will say “everybody please rise” — when this happens it is polite to stand up until the clerk tells everyone to “please be seated”.

6) Turn Off Your Cell Phone

When court begins, the clerk will usually remind everyone to turn off their cell phones — make sure that you do. Not only is it disrespectful if your cell phone to ring in court, but many courtrooms have special recording devices and cell phones can interfere with their ability to record the proceedings. That’s why it is important to turn your phone completely off; don’t just switch it to silent mode. Sometimes, if the Justice of the Peace is in an anxious mood, they may direct a court officer to confiscate a cell phone that has caused a distraction in the court.

7) Be Quiet

It is important to remain as quiet as possible while you are waiting for your name to be called. Make sure that you pay attention and listen for your name so that you do not miss your appearance.

Be Polite and Avoid Arguing

When your name is called you will go stand at the front and address the court. It is very important to be polite and avoid arguing with the judge or justice of the peace. This is not the time to challenge the accusation or express your defence.

9) Use Proper Vocabulary

It is important to be polite and respectful when you address the court. It is also helpful — though not necessary — to use and understand some common legal language.

The proceeding will be presided over by either a judge or justice of the peace. To determine which you are appearing before look at his or her sash — if it’s red you are appearing before a judge and should address him/her as “Your Honour”; if it’s green you are appearing before a justice of the peace and should address him/her as “Your Worship”. It is likely that on a first appearance at a Toronto court house you will appear before a justice of the peace.

Generally speaking, if you are appearing in court for the first time, you will want to put the matter on hold for a couple of weeks until you are able to retain a lawyer. In legal vocabulary, putting a matter on hold so that you can return to court to address it in the future is called “adjourning the matter” or “remanding the matter”. When you address the court you will ask to adjourn or remand the matter to a specific date to give you an opportunity to “retain counsel”. This is also known as “holding the matter over” to a specific date. You probably want to aim for a date about a month after the day of your first appearance. This should give you an adequate opportunity to find a lawyer before you return to court. Usually on a first appearance you will have no problem remanding the matter in order to find a lawyer. (For tips on how to choose a lawyer see our blog “How Do I Choose a Lawyer?”)

If the court asks you any questions or brings anything up that you do not understand you should ask to have an opportunity to speak with duty counsel. “Duty counsel” is a legal aid lawyer who is on duty to assist individuals who do not have counsel. Most Toronto courthouses will have a duty counsel office with many lawyers on duty and, in addition, most Toronto courtrooms will have their own duty counsel lawyer present who may be able to speak with you. You can ask the court to “hold the matter down” while you speak to duty counsel. This means that the court will go back to calling names off the docket while you speak with duty counsel and when you return they will recall your name and finish addressing your matter.

10) Dress Appropriately

The dress code in court is somewhat formal. You should attend court wearing something you would feel comfortable wearing to a job interview, to work in an office, or to a religious service in a church, temple, mosque or the like. People do attend remand court in jeans and it is generally acceptable to do so, though it is preferable to wear dress pants or a skirt. When it comes to your trial you should aim to wear a suit or something equally formal if possible.

It is important to look respectable in court — both so that you will be taken seriously and to show proper respect to the court. For women this means avoiding short skirts (knee-length or longer is preferable), low cut cleavage, spaghetti strap tops, and bare mid-drifts. Men should be careful to avoid overly baggy jeans, hooded sweatshirts, and tank tops. It is not appropriate to wear a baseball cap or any other kind of hat in the courtroom (unless the hat is worn for religious purposes). You will always be appropriate in a suit, dress pants and a dress shirt, a conservative dress, khakis and a polo shirt, a long skirt and shirt with sleeves, or something similar. The court system in Toronto is quite conservative, and though you may see people in all sorts of dress when you appear, you will make the best impression if you dress appropriately.

Individuals facing criminal charges are often released on bail while they await trial. When released, the accused individual will be provided with a “recognizance” or other Court order which dictates the terms of release. The recognizance is essentially a document which states that the accused individual is released on bail and stipulates the conditions of that release. An individual released on bail will often have to comply with a variety of conditions upon their release. Some typical conditions are:

• A curfew;
• A prohibition against possessing drugs, alcohol, or weapons;
• A driving suspension;
• A prohibition against communicating or having contact with specific individuals;
• Remain in the province of Ontario.

According to the terms of the recognizance, the accused person is bound to comply with the terms of their bail until the completion of their trial. However, due to the delays in the Toronto criminal justice system, an individual often may have to wait a year or more until their case is heard in a Toronto court. In this context, the terms of the recognizance are often an undue burden on an accused person, making it hard for them to live a normal life in their community. Since every individual in our criminal justice system is presumed innocent until proven guilty, they should not undergo undue hardship as they await trial. As criminal defence lawyers, one of our most important duties is to ensure that our client’s bail conditions are reasonable or as least restrictive as possible. The long delay between a charge and a trial can be stressful enough without having to deal with bail conditions which may interfere with your ability to work, visit loved ones, and interact with your community. We try to lessen that burden by varying any unfair or burdensome bail conditions.

If one of our client’s believes that any condition of their bail unfairly interferes with their lives, we will negotiate with the Crown Attorney’s office to vary the terms of their recognizance. After the Crown agrees to modify a term, that modification must also be approved by a Justice of the Peace. Once agreed upon by all parties, an unreasonable bail condition is replaced or deleted. This is known as “bail variance”

Bail variation comes up often in domestic assault cases where both partners wish to continue their relationship but are forced into an artificial separation by a mandatory restraining order in the accused person’s bail. Often, with the permission of the Crown, a Justice of the Peace, and the alleged victim of the domestic assault, that condition can be removed so that the relationship may resume cohaitation. Another common situation where bail variances can be very effective is in the context of a DUI charge. Sometimes, an individual charged with impaired driving will be released upon condition that they  refrain from driving or being in the front seat of a motor vehicle as part of their bail. However, this can restrict an individual’s mobility to the point that they cannot continue to work. A defence lawyer will often apply to the Court to vary this term allowing the accused person to drive for work purposes. In Toronto, this variation is often granted.

The criminal justice system in Toronto and throughout Canada puts a very high value on an accused person’s ability to continue in their career and maintain family ties as they work their way through the court system. Thus, reasonable bail variations which attempt to accomplish these two goals have a high chance of success in the Toronto system. However, other types of bail variations are also common. For example, as an accused awaits trial they may apply to change their curfew based on good behaviour. As long as the accused person has complied with the terms of their bail and has been otherwise well behaved, the Crown will likely agree to modify their curfew.

An effective criminal defence lawyer will not only take care of an accused individual at the trial stage, but will fight for their rights at every stage of the trial process. A bail variation is one example of how a competent defence lawyer can mitigate the onerous level of stress which a client experiences as an accused. At Kostman and Pyzer, Barristers, we are sensitive to these factors. We protect our clients!

When one of our clients is accused of a crime and taken into custody, our first responsibility as criminal defence lawyers is to help that client get out on bail. A justice of the peace (JP) will usually decide whether or not to let an accused person out on bail through a bail hearing. The bail hearing is conducted in a criminal court house. At the bail hearing the JP will assess whether the accused should be let out on bail by considering three criteria:

1. 1. If released, is the accused likely to appear in court or is he/she a “flight risk”?
2. 2. If released, is the accused a danger to the community, the complainant or his or herself? 
3. 3. Is it contrary to the public interest that the accused is released? Would a decision to release the accused on bail “shock the community”? (This is often an issue with usual or violent crimes that get a lot of media attention).

If consideration of these three criteria suggests that it would be ok to release the accused, the JP can grant bail and is free to impose any conditions he or she sees fit. Some examples of conditions which may accompany bail are:

1.  
   • a curfew, 
   • a duty to remain in a specific geographical area,
   • a duty to report to the police at regular time intervals, 
   • a duty to seek counseling or other forms of treatment, 
   • a duty to reside at a specific address, 
   • a condition that the accused not possess any weapons, 
   • a condition that the accused refrain from drinking alcohol, 
   • or a condition prohibiting the accused from communicating with the victim.

These conditions will be spelled out in a court order granting bail commonly referred to as a recognizance. 

Often, a JP will be more likely to release an accused on bail if another individual (either a friend or family member of the accused) agrees to sign the bail and act as a surety. A surety takes responsibility for the accused and promises that court that the accused will comply with certain conditions when released from custody. If the judge decides to assign bail, the surety will have to sign the recognizance. It is the surety’s responsibility to make sure that the accused person complies with the conditions in the recognizance and attends all court appearances. If the accused fails to meet these obligations, the surety may have to forfeit an amount of money specified in the recognizance. 

Who Can Sign Bail?

Not just anyone can act as a surety. There are several requirements an individual must meet to qualify as a surety:

•  
  • ¥ The surety must not be involved with the charge (i.e., a complainant or co-accused cannot act as surety)
  • ¥ The surety must be 21 years of age or older
  • ¥ The surety cannot have a criminal record
  • ¥ The surety must be a Canadian citizen or landed immigrant
  • ¥ The surety cannot be an employee of the accused person
  • ¥ The surety must be employed (with some exceptions)

In addition to these requirements, the JP must be satisfied that the surety is able to pay the amount of bail set out in the recognizance should the accused fail to comply with the terms of the bail. Sometimes the surety will be asked to deposit the amount of the bail at the time the accused is released and will have the money returned if the accused complies with the recognizance. More often, the surety must simply show using bank statements, RRSPs, savings bonds, etc. that he or she is able to pay the amount of the bail if necessary. In the end, the JP will decide if an individual qualifies as a surety and has discretion to waive some of the requirements listed above in special circumstances. The JP will also consider the character of the surety and their overall impression of how responsible and trustworthy the surety appears to be. During the bail hearing, the potential surety may have to give evidence or answer questions about their qualifications to act as a surety. It is very important to note that it is against the law accept payment for acting as a surety.

Duties of a Surety

The main duty of a surety is to supervise the accused person after they are released back into the community and ensure that the accused follows all of the terms and conditions of his or her recognizance. Another important duty of a surety is to make sure that the accused attends at all their assigned court dates. As an acting surety, you are also obliged to ensure that the accused does not commit any criminal offences after they are released on bail. If, at any point during your obligation as surety, it comes to your attention that the accused person has or is about to break a condition of his or her bail you are obliged to notify the police. These responsibilities begin at the bail hearing when the surety signs the recognizance and do not end until the accused’s case is completely over. In some cases, this can take a very long time (even several years), so an individual should not take the decision to become a surety lightly. If you are considering acting as a surety, we suggest that you obtain independent legal advice from a criminal defence lawyer before making such a commitment. 

If you do decide to act as a surety, and at some point during the course of your duties you find that you are no longer willing or able to act as a surety, there are steps you can take to relieve yourself from the obligation to act as surety. You can bring the accused person to court personally and ask that they relieve you from your obligation. Another option is to come to the court alone and apply in writing to be relieved of your obligation. In both cases, the accused will be rearrested should you decide to stop acting as their surety. If you believe that the accused person is a threat to your safety in any way, we recommend that you apply in writing to end your obligation as surety and do not attempt to bring the individual personally to court.

Forfeiting Bail

If you decide to act as a surety you may be forced to forfeit the bail amount specified in the recognizance. If the accused fails to appear for a court date or fails to comply with a condition specified in the recognizance, the Crown may ask that the court direct you to pay the money you committed as bail for the accused. If the Crown makes such a request, a hearing will be scheduled. This type of hearing is referred to as an estreatment. During the estreatment, you will have an opportunity to tell the court your side of the story and explain why you should not have to forfeit the amount of the bail. In the end, the JP will order that you pay all, none or part of the bail amount. If this happens, the accused will likely be returned into custody, and your obligations as a surety will end. 

In our criminal justice system, every individual is presumed innocent until proven guilty. When an individual is facing criminal charges, until he/she is proven guilty, he/she should not be denied his/her freedom unless there is a good reason for doing so. By acting as a surety for an accused person, you play an important role in the criminal process and you help a friend or family member during through a very difficult period in their lives. That said, it is a significant responsibility and you should be fully informed before pledging to act as a surety. If you have any questions about acting as a surety, contact one of the criminal defence lawyers at our office by calling 416-658-1818.