What does a criminal lawyer do?

A criminal lawyer is involved during all phases of a criminal case- from the arrest to the last day of the trial. The lawyer is there to represent the accused to the full extent of the law and to provide support during this very difficult process.  If you are charged with a criminal offence, you will have an opportunity to engage a lawyer at all stages.

The Police Investigation and Arrest

Immediately upon arrest and while still in police custody, the police are required to provide you with an opportunity to contact a lawyer, that includes either a free lawyer, known as duty counsel, or any lawyer of your choice. Once you contact a lawyer, their role is to provide you with legal advice as it relates to the charges you face, the advice would include a discussion about your right to remain silent. During that conversation, you will also discuss next steps with respect to immediate release from police custody.

There are circumstances where a criminal lawyer is involved even before the formal arrest. When you are alerted by the police that there is an outstanding warrant for your arrest, you should contact a criminal lawyer immediately and they will assist with making arrangements for you to surrender yourself at the police station and will ensure a speedy release from police custody.

The Bail Hearing

Depending on the nature of the charges and your criminal record, if any, you may be held in custody pending a hearing where the question of your release is determined, the hearing is called a bail hearing. According to the Criminal Code of Canada, the police have twenty-four hours to bring you before the court for a bail hearing. However, unfortunately, while you may be brought to Court within the mandated twenty-four hours, the actual bail hearing may not happen right away due to limited Court resources. It is, therefore, crucial to have a criminal lawyer engaged at this stage whose job will be to strongly advocate for the earliest bail hearing possible.

Once the Court provides the necessary time for your hearing, it is the role of the lawyer to negotiate and/or litigate the terms of your release. These are known as the “bail conditions”. A criminal lawyer will typically first review a synopsis of the charges and then attempt to negotiate the terms of release with the Crown’s office. If the terms are not agreeable, or the Crown will not consent to your release, a criminal lawyer will attend for a bail hearing in front of a Justice where the Court will decide whether you are releasable and if so, what the terms of that release will be.  

Disclosure Review and Case Assessment

After the bail hearing stage, the criminal matter will proceed through the court system. You will have a first appearance date in whatever jurisdiction you have been arrested. This is an administrative appearance only – it is not a trial. Assuming you have retained a criminal lawyer and have completed the requisite paperwork (known as a designation), the lawyer will appear on your behalf at the first appearance and any administrative appearances thereafter.

Ideally, by the time of the first appearance, the criminal lawyer will have received initial “disclosure”. Disclosure is the evidence that the police have gathered in investigating the alleged offence(s). Often the disclosure that is initially provided is not complete. It is the role of a criminal lawyer to request all disclosure that remains outstanding and to continue to request that disclosure until it is received.

A criminal lawyer reviews the disclosure in an aim to understand the allegations and identify legal issues. Their role is to assess the strength of the Crown’s case and similarly to assess the strength of any defences, both legal and factual. This will involve meeting with you and obtaining defence evidence and/or meeting with your witnesses.

Crown Pre-Trials and Judicial Pre-Trials

After the criminal lawyer reviews the disclosure and assesses the strength of the case, they will arrange to have a crown pre-trial. This is essentially a meeting (typically done by telephone) where the crown and defence lawyer discuss the merits of the case and whether the matter can resolve on terms that both parties are happy with. If the crown pre-trial is fruitful and the matter can resolve, it will proceed towards the resolution path.

If the parties cannot agree to a resolution, the matter will proceed towards the trial path. The next step on the trial path is for the parties to conduct a judicial pre-trial. This is a meeting with the Crown, defence lawyer and a Judge. The purpose of this meeting is for the judge to provide input on resolution and/or to discuss the logistics of the matter going to trial. These logistics include things such as how many witnesses the Crown will call, whether there be any pre-trial motions or Charter motions and other legal and procedural issues. Ultimately, the parties will agree to a trial estimate (i.e., the length of the trial). A criminal lawyer will set the trial dates through the administrative streams.

Trial Preparation

The heart of the role of a criminal lawyer lies in the trial. A criminal lawyer is expected to prepare their case. This includes preparing a defence, or multiple defences, preparing their questioning (otherwise known as cross-examination) of the Crown’s witnesses and potentially preparing their own witnesses for testifying, assuming you decide to call evidence at the trial. The criminal lawyer’s role is to advise you whether to call the defence or not and if so, how many witnesses and in what order.

Many but not all criminal cases will have pre-trial motions which can be brought by both Defence and Crown. Pre-trial motions are arguments before the Court about the legal boundaries of the evidence in each particular trial. It is the role of every defence lawyer to first identify which motions are necessary and must be brought by the defence and then to prepare, serve and file the motion materials. Similarly, it is the criminal lawyer’s role to respond to any written application materials filed by the Crown.  On the date of the pre-trial motion, your criminal lawyer is responsible for orally arguing that motion in front of the Court.

After all the pre-trial motions are completed, the trial begins and the Crown calls its case. Your criminal lawyer will listen to each Crown witness and then cross-examine them in an effort to shake their reliability and credibility and with a view to further whatever defence you will be leading, if any. At the completion of the Crown’s case, you and your criminal lawyer will once again consider whether evidence needs to be called in response to the Crown’s case and if so, your lawyer will call the witnesses they previously prepared. After the evidence is completed, the criminal lawyer will make submissions to the Judge as to why the you should be acquitted or, in other words, found not guilty.

Post-Trial Matters

If you are acquitted at trial, the criminal lawyer’s job is essentially complete. However, if you are found guilty, your lawyer will prepare for and attend at the sentencing hearing. Here, the criminal lawyer is responsible for preparing sentencing materials and advocating for the best sentence. This includes providing the Court with case law on the reasonable sentence, providing reference letters and/or arranging for you to do upfront work (such as counselling) that would mitigate any sentence.

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About the author

I am one of the senior partners at Bytensky Shikhman, a criminal litigation firm in Toronto, Ontario, Canada. In my 25+ year career, I have conducted numerous trials and appeals before all levels of Court in Ontario, defending just about every type of charge in our criminal law. I am also an Adjunct Professor of Trial Advocacy at Osgoode Hall Law School and currently the Treasurer of the Criminal Lawyers' Association of Ontario. I am also an Adjunct Professor for Trial Advocacy at Osgoode Hall Law School, York University and a regular lecturer and placement supervisor for Osgoode's Intensive Programme in Criminal Law.
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