Criminal law FAQ

Questions people ask
when they have been charged.

Being investigated, arrested or charged is frightening, and most of that fear is not knowing what happens next. Below are the questions we are asked most often, answered plainly. None of it is a substitute for advice on your own case — but knowing your rights and how the process works makes the whole thing considerably less intimidating.

Speak to a lawyer

416-297-7200

Available 24 hours a day

Search the questions

28 questions · 5 topics

If you have just been arrested

What you are allowed to do, and what the police are required to do, in the first few hours. These rights apply whether or not you have been charged.

Do I have to answer police questions?

No. The police may ask anyone questions during an investigation, but you are under no legal obligation to answer them. That applies to people under arrest, people under investigation, and witnesses.

The right to silence is a principle of fundamental justice protected by section 7 of the Charter. Anything you say to the police may end up before the court as evidence. The rules of evidence work in one direction here: statements that help you rarely get in, while incriminating or ambiguous ones often do.

Stay silent until you have spoken to a criminal lawyer.

Can I speak to a lawyer before I answer anything?

Yes, and asking for one changes what the police are allowed to do. Once you say you want to speak to a lawyer, they must stop questioning you until you have had the chance to speak with a lawyer of your choice. If you do not have one, they must give you access to free duty counsel through Legal Aid.

After you have spoken to a lawyer the police may start asking questions again. It is still your decision whether to answer. Anything you tell them can be used to prosecute you, or someone else.

Do the police have to tell me why I am being arrested?

Yes. If the police detain you, they must tell you why. An investigative detention has to be brief, because it is not an arrest, and the police are not entitled to stop you on the street for no reason and question you.

If you are arrested, you have the right to be told about every charge you are facing. In either case you are under no obligation to speak to them.

When are the police allowed to search me, my home or my car?

Only with lawful authority. A hunch or a suspicion is not enough. For a home, that authority almost always takes the form of a search warrant authorised by a judge, naming a specific place and a fixed period of time.

A search can also be unreasonable because of how it was carried out — an unjustified strip search, or a warrant executed with excessive and unnecessary damage to property.

Where a search was unreasonable, we can apply to the trial judge for a remedy. Usually that means excluding the evidence that came out of it. In serious cases a judge can stay the charges altogether because of the police conduct.

What does “presumed innocent” actually mean?

It means the burden never shifts to you. The prosecutor has to prove the offence beyond a reasonable doubt. You are guilty only if you plead guilty, or if you are found guilty after a trial — you are never asked to prove your innocence.

If the judge is left with a reasonable doubt about your guilt, you cannot be convicted.

Going to court

Nearly every criminal charge in Canada moves through the same sequence of steps. This is what each one is for.

What happens at my first court appearance?

Your first appearance is not your trial. None of the witnesses or police officers involved in your case will be there, and it is not an opportunity to tell the judge your side of the story. Its purpose is to get the details of the allegations against you.

Any evidence the prosecutor intends to use against you has to be handed over in advance. That is called disclosure, and it may include police and witness statements, surveillance video, photographs, or anything else relating to the case. The prosecutor must disclose everything relevant, including material that points towards your innocence.

Disclosure often is not ready at the first appearance. If it is not, you — or we, on your behalf — return on another date to get it. The more serious or complex the case, the longer it usually takes.

Do I need a lawyer at my first appearance?

You are not required to have one, but there are practical reasons to. A lawyer can attend with you or, depending on the arrangement, attend on your behalf so you do not have to be there at all. Your lawyer speaks for you, which removes the risk of saying the wrong thing on the record.

In most courthouses the Crown deals with represented cases before unrepresented ones. Most people retain a lawyer before their first appearance.

What is a Crown pre-trial or resolution meeting?

It is a meeting between your lawyer and the Crown Attorney, usually by phone, after both sides have reviewed disclosure.

The first question is whether the prosecutor intends to proceed on the charges at all — in some cases we can persuade them not to. If the prosecution continues, the discussion turns to whether you will be pleading guilty or not guilty. On a guilty plea the Crown will set out which charges they need, the facts they expect you to accept, and what sentence they consider appropriate. All of that is negotiable.

If the case is heading to trial, the two sides work out which witnesses are needed and how long the trial will take, so a realistic date can be set. Where they cannot agree, either side can ask a judge to step in.

What is a judicial pre-trial?

A judicial pre-trial brings a judge into the discussion as a mediator. The judge may give a view on the merits of the case to move one side towards a fair compromise, offer an opinion on an appropriate sentence if there were a guilty plea, or help estimate how long a trial would run.

Bringing a judge in is a strategic decision and every case is different. The judge’s opinion is not binding on anyone.

Should I plead guilty?

Not until you understand what it costs you. A guilty plea means admitting the facts underlying the charge. Before you decide, you need to know what the Crown is asking for — whether they want jail, whether they want a permanent criminal record.

You also need to understand the consequences beyond the sentence: your ability to travel, your immigration status, your employment prospects. A finding of guilt can also be used against you in civil or family proceedings arising out of the same events. People plead guilty without grasping the full implications more often than they should.

Once you decide, a date is set for the plea. The sentencing hearing that follows is one of the most important parts of the process. Sometimes both sides ask for the same sentence; sometimes they ask for completely different ones. The judge decides.

Should I take my case to trial?

That depends on the strength of the evidence against you, what you stand to lose if the trial goes badly, and what evidence you have to put forward yourself.

By the time a trial date is set, the case has usually been through evidence gathering and negotiation. Trials commonly happen several months — sometimes more than a year — after the alleged offence, depending on the availability of the court, the witnesses and the lawyers.

At trial the prosecutor calls evidence to prove your guilt. We cross-examine every witness they call, and can try to keep evidence out altogether where it was illegally obtained or is unreliable. Once the Crown closes its case, you may choose to testify or call evidence of your own.

How long is a criminal case allowed to take?

There are hard ceilings. In R v Jordan, 2016 SCC 27, the Supreme Court set presumptive limits on the time between the charge and the end of trial: 18 months for a case tried in the Ontario Court of Justice, and 30 months for a case in the Superior Court of Justice, or one that goes to the Superior Court after a preliminary inquiry.

Delay that you or your lawyer cause is subtracted before the clock is measured against the ceiling. Past the ceiling, the delay is presumed unreasonable and the Crown has to justify it by pointing to exceptional circumstances.

Where it cannot, the remedy is a stay — the charges are stopped for good. It is a significant remedy and courts do not grant it lightly, but delay is worth tracking in every case from the first appearance onward.

Do I need a lawyer at all?

A lawyer is not only for people who intend to have a trial. Most cases are resolved without one, and the work that produces a good resolution — reading disclosure properly, finding the weaknesses, negotiating with the Crown — happens long before any trial date.

Having a lawyer through the whole process means your interests are protected at every stage, whichever way the case ends.

Bail and bail conditions

Bail conditions are set once and are then hard to move. Understanding why explains which of the two routes to changing them is open to you.

Why are bail conditions so difficult to change?

Because of who is allowed to review them. For almost all offences — murder, treason and a handful of the most serious crimes aside — bail is granted in the provincial court by a judge or justice of the peace.

Once bail is granted or denied, no other judge or justice at the provincial court level can review that decision or the conditions attached to it. The single exception is where the Crown agrees to the change. Without that agreement, the only route is a formal bail review application before a judge of the Superior Court of Justice.

What is the easiest way to get a bail condition changed?

Persuading the prosecutor to consent, so that no bail review hearing is needed. It is the quickest and least expensive route by a wide margin.

Prosecutors rarely remove a condition a judge or justice imposed without a good reason. If a curfew was imposed, they are unlikely to lift it outright — but they may well agree to an exception for a specific purpose such as work or school.

How do I convince the prosecutor to agree?

With documents. A travel itinerary for a booked trip, proof of employment, proof of school registration — these are what move a prosecutor's decision. The better the supporting material, the more likely they are to agree to the variation as requested.

What if the prosecutor will not agree?

Then the only remaining remedy is a bail review application before a judge of the Superior Court of Justice.

Can anyone bring a bail review in Superior Court?

No. Wanting a condition changed is not enough on its own. You have to show either that the judge or justice who set the original conditions made an error of law, or that there has been a material change in circumstances since.

What counts as an error of law?

An example: at the original bail hearing the judge imposed a condition restricting travel by requiring you to deposit your passport with the police, on the basis that you would not show up for trial — where nothing in the evidence heard at that hearing supported drawing that inference.

What counts as a material change in circumstances?

An example: you seek to relax a strict condition such as a curfew after the serious charges that justified the curfew in the first place have been withdrawn.

What is required to bring a bail review?

Once you have an error of law or a material change, the application itself requires paperwork to be filed before it will be heard.

One item is a complete transcript of the original bail hearing, so the reviewing judge can see why each condition was imposed. Transcripts are ordered from an authorised court transcriptionist, are charged per page at a rate set by the province, and typically take one to two weeks. A lengthy bail hearing can run to several hundred dollars to transcribe.

You also need affidavits — sworn statements — from you and from anyone who has agreed to act as a surety.

How quickly can a bail review be heard?

Once the application materials are assembled, the court requires at least two business days’ notice before it can be argued.

On the date, your lawyer, you, and any sureties in the supervision plan all have to appear before the Superior Court judge to establish why the original bail should be changed. It is often an all-day process.

What does a bail review cost?

Enough that it is worth exhausting the consent route first. Between the transcript, the affidavits, the preparation and a day in court, varying a condition the Crown will not agree to can cost as much as defending the original charge — sometimes more.

Cost is assessed case by case, on the complexity of the issues and the time needed to prepare and argue the application. Call us at 416-297-7200 and we will tell you whether a bail review is realistic in your situation before you spend anything on it.

Working with a lawyer

How to book, what it costs, how to choose, and what to bring to the first meeting.

Can I come to your office without an appointment?

No. We do not accept walk-in clients, and consultations are by appointment only.

Call us at 416-297-7200 to book one. The phone is answered 24 hours a day, so you can reach someone whatever time your situation has arisen, and we will find you the first available appointment. You can also send us your details through the contact form and we will call you back.

A consultation is a full 60 minutes with one of our criminal defence lawyers, in person at our Church Street office or by videoconference, for a flat fee. Booking ahead is what makes that hour useful: the lawyer you meet has the time set aside for you and has already read what you sent in.

What does it cost to hire a criminal defence lawyer?

It depends on the nature of the problem, how complex it is, and what you are trying to achieve. Every case is different, so there is no list price.

We normally discuss fees at the end of your first meeting, once we have assessed the charge and understood how much work is involved. Fees and services are always set out in writing, and we generally bill on a block fee rather than hourly.

Most clients prefer it. A block fee tells you what the case will cost from the outset, and it means you can call your lawyer with a question without watching a clock — or worry that your matter is being drawn out in court at your expense. It also aligns the incentives: resolving the case efficiently is in both of our interests.

We accept Visa, Mastercard, Interac, certified cheque and money order.

How do I choose the right criminal defence lawyer?

Past the obvious considerations — price, location, particular expertise, track record — the one that matters most is whether you and your lawyer can have a frank, respectful and open conversation about your problem.

A criminal charge is stressful and the process is long and intimidating. It can affect your job, your ability to travel, your immigration status and your relationships, and it can feel like your life is on hold. Support from family and friends helps, but so does being able to talk openly to the person handling your case.

The right lawyer is someone you are comfortable working with and who you believe can solve the problem efficiently and effectively.

What should I bring to my first meeting with a lawyer?

Bring everything you have received from the police or the prosecutor — disclosure, bail papers, anything else. If you have relevant documents, photographs or the names of witnesses, bring those too.

A written chronology of your involvement is often useful. If you prepare one, mark the top of it clearly: PRIVATE AND CONFIDENTIAL — FOR MY LAWYER. That protects it from being used against you if it is ever lost, stolen or seized.

Until you have met with a lawyer, do not discuss the case or show your documents to anyone. Anyone you speak to can become a witness against you, willingly or otherwise. Only what you say privately to your lawyer is protected.

After the case is over

A withdrawn or dismissed charge does not erase the police record of the arrest. That takes a separate request.

Can I have my fingerprints and photographs destroyed?

Usually, yes — but only if the case ended in your favour, and only if you ask.

Most people facing criminal charges are required to give the police fingerprints and photographs, which are then held on file and can be used in later investigations. The obligation applies to indictable offences, and because hybrid offences count as indictable until the Crown elects, it covers most charges. Only a straight summary conviction offence falls outside it.

If you are acquitted, or the charges are withdrawn or stayed, you can ask the police service that laid the charge to destroy your prints and photographs and remove the record from their database. In most cases they will agree.

Timing depends on how the charge was disposed of and on that police service’s own policy — most impose a waiting period, commonly around five months, before they will process the request. It does not happen automatically, so it is worth asking us to confirm it was done.

If you are found guilty, the fingerprints and photographs stay on file permanently.

Also on this site

Court words, explained

Disclosure, factum, recognizance, judicial pre-trial, CPIC. The words you will hear in a courtroom, each explained in a sentence or two of plain language.

Read the glossary

Still have a question about your own case?

General answers only go so far, and nothing on this page is advice about your situation. Tell us what you are facing and we will tell you where you actually stand.

Call 416-297-7200 Send us the details

Consultations are a flat fee for a full hour, in person or by video. The phone is answered 24 hours a day.