A Practical Guide to the Aftermath of an Arrest
When the police believe that there are reasonable and probable grounds that a person has committed a crime, they will usually make an arrest. After an arrest, the police have the discretion to take one of two courses of action:
1. They may decide to release the accused person without a bail hearing. In this situation an accused person is released from police custody after they sign documents promising to come to court and often to come back to the police station to be fingerprinted (if they were not fingerprinted at the time of their arrest).
2. The police may decide to not release the accused person from their custody, but will detain them for the purposes of having a bail hearing. That bail hearing will then be held before a judge or a justice, depending on the situation.
Either way, the majority of people accused of criminal acts end up being on some form of release in the community (bail) after the allegation has been dealt with by the police. The accused person will be released on their promise to attend court at a later time, known as the first appearance.
Between the accused person’s release from custody and the first appearance the police are required to finish their investigation and forward their report and investigation materials to the Crown prosecutor’s office. A prosecutor will review the police materials and consider whether the case meets their charge approval standard. If the prosecutor believes the case meets that standard, they will approve prosecution of the case and it will be added to the court list for the first appearance date. The prosecutor may also decide not to approve a charge or to return the file to the police for further investigation.
Many people who are released from police custody mistakenly believe that the first appearance court date will be their trial. That is not the case. Generally, the first appearance is a quick appearance in front of a justice of the peace. The prosecutor will have the police report and evidence package ready to be disclosed to the accused person or their counsel. Then, the matter may be adjourned some days or weeks for the accused person to hire a lawyer, speak to Crown counsel, consider the police materials and make a decision as to what they want to do with the case.
An accused person can hire a lawyer to go to their first appearance for them or they can go on their own, pick up the police disclosure materials and then take them to a lawyer for advice.
If, at the end of these adjournments, the Crown counsel prosecutor is still proceeding with the charge, then an accused person must make a decision as to whether they want to have a trial or plead guilty.
Although not a lot happens in the courtroom during these initial appearances, often a lot goes on behind the scenes. Depending on the circumstances, a lawyer may be able to negotiate with the prosecutor to have the matter referred to a diversion program, provide further information that persuades a prosecutor not to proceed with the charge, negotiate a plea to a lesser charge, negotiate a change to bail conditions and/or request further disclosure. Unfortunately these outcomes may be very difficult, if not impossible to achieve without the help of a lawyer, again depending on the circumstances.
It is certainly less stressful to be able to have the assistance of your own lawyer to help you through this difficult process. If you are not able to afford your own lawyer, you can seek the assistance of a duty counsel lawyer. Duty counsel lawyers are available to provide free preliminary advice on criminal matters at the courthouse on days where these initial appearances take place. It is always better to have at least some advice, rather than trying to navigate this completely on your own.
At Mines and Company we deal with these courtrooms, prosecutors and situations every day. If you or someone you love is facing a criminal charge it would be our pleasure to sit down with you and let you know what we can do to help out.