A New Lawyer’s Practical Guide to Criminal Law: Bail, Pre-Trials, Charter Applications

You're a newly called lawyer and get a call from your first potential client who is in custody, awaiting bail. What practical steps should you take to bring a bail hearing and how can you ensure a successful hearing?

Once your client is released and you've obtained disclosure, it’s time to conduct a crown pre-trial and a judicial pre-trial. What are the factors to consider? What steps should you take in preparation and what should you seek to achieve from these pretrials?

Finally, it’s time for trial and you have a number of pre-trial Charter applications. What are some tips to get your application to stand out and ensure you have the best chance possible for a successful application?

Join us to hear from a Judge, Justice of the Peace, Crown Attorney and Defence Lawyer on practical tips and mistakes to avoid in your early years of practice as a criminal lawyer.

Pre-trials

• Best use of a judicial pre-trial
• What can counsel hope to achieve at a pre-trial? Both Defence and Crown
• What does a judge expect in terms of preparation?
• Charter Applications
• What does a judge look for in a Charter Application?
• What makes an application good, v. mediocre v. bad?
• Do's and don'ts when it comes to Charter Application, if possible for both

Defence and Crown. (EDI - Understanding power and privilege, unconscious bias or cultural homophily + 7 mins of Professionalism Content – civility among lawyers)

Bail:

• Preparing sureties- Interviewing, explaining their duties, working together to create a release plan.
• Marginalized Groups, Indigenous accused, those with mental health and addiction problems, or those economically disadvantaged. These accused usually have no sureties, or sureties with very little if any economic means.

They also pose other challenges. Can you speak a little about that and how you deal with the challenges?

Pre-Trials

• Preparation, how to best prepare
• Is there are difference between preparing for a crown pre-trial v. judicial pretrial
• Civility: The relationship between Crown and Defence

Charter

• Do you argue only strong charter motions or any motion at all regardless of chance of success? Why?
• Some tips for newly called lawyers on drafting and arguing effective Charter

Applications (Civility, between Counsel and Judge, expectations and best practices)

Pre-Trials

• Typically a particular Crown will be assigned to a file at the very early stages; you can call and find out who the assigned Crown is, and ask the support staff the procedure for setting a CPT; usually by telephone during set times
• Only set a CPT once you are ready to discuss trial estimates or resolution
• Let the Crown know which of those two things you want to discuss
• Know the Crowns case and your Defence before the pre-trial
• Consult with your client in advance
• Are there Charter issues?
• Are there defence witnesses?
• What concessions can you make?
• The purpose of the pre-trial is to try to hash out the details to either a) resolve the case or b) make the best use of resources by having an efficient trial

Trial

• Make reasonable concessions; you will not make friends with the Crown or the judge if you make no concessions but then do not actually challenge the evidence at trial
• Know the decisions that you, as reasonable counsel, are permitted to make – and those that must be left with your client; do not allow your client to control the process

Resolution

• In discussing resolutions, do your up-front work before the CPT
• If you will be proposing a position that is outside of the range, or a plea to something less than that charged – try to avoid discussion by ambush. No one appreciates being asked to make a decision on the spot, without having reviewed the foundation for the suggestion
• Send the Crown the materials you’ve gathered that support your clients prospect for rehabilitation; send the Crown any cases you want to rely on for sentencing
• Don’t be afraid to go in open! Policy reasons sometimes preclude the Crown from joining you at the position that you suggest. You became a criminal lawyer to litigate! Sentencing hearings are a great way to get your feet wet in the field of advocacy.

Bail

• Prepare, prepare, prepare!
• Do your up-front work – get to know your client, work up your proposal by making connections for this individual if s/he is released (housing, community supports, counselling etc)
• Know your surety, their history, their relationship with the accused and prepare them for cross-examination
• Be on time! Judges hate it when defence show up at 2:15 and want a hearing; if you will be late, send a message with an ETA through DC
• If you want DC to run your hearing, give them the information they’ll need to do so (see above, plan of release); this is your client! Don’t leave his/her prospect of release up to someone who can’t possibly prepare as well as you can!
• Discuss your plan and your proposal with the Crown in advance
• Bail vettor – many jurisdictions
• This may avoid the necessity of a hearing
• If you are asking for something unusual – start by trying to convince the Crown of your proposal (i.e. a release on something that we might typically oppose)
• Judges
• Know jurisdiction – different practice directives – calling sureties on consent releases (not all jurisdictions), making argument without evidence (in some judge-run bail courts); once you know the general practices at each courthouse it will help you to prepare and help you make the most efficient use of your time once you get to the courthouse and until you leave

Charter Applications

• Timing: Follow the OCJ and SCJ rules in terms of filing deadlines; no one will fault you for filing early. You are not giving anyone an unfair advantage by doing so. But filing late can be much more problematic. Could result in your Application being dismissed. Could result in an adjournment.
• Form: While only the Form is required at the OCJ as opposed to a Factum in most instances, providing the law that you plan to rely on in advance is not only courteous to both the judge and the Crown, it is also a more efficient use of court time and may actually convince a Crown of the merits of your Application in advance. Filing fulsome materials allows the judge to follow along when you are litigating this at the end of the Application, but also provides a roadmap for the judge in terms of what to pay attention to when the evidence is being called. This can shorten the amount of time you need to spend on submissions in the end, because the judge has known the direction you are headed in from the commencement of the hearing.
• JPT: Be sure to canvass these issues at the JPT stage, and know the general thrust of your argument. Having these discussions in advance is the only way to ensure that the appropriate witnesses are notified (on a s. 8 motion for example – Garafoli/Dawson) and that the appropriate amount of time is set aside. This all depends on the complexity of the argument and the amount of evidence that will be called.
• Reputation: Often we don’t have the funds from clients or LAO to put in the time that is required for the files that we deal with. This is the case for Crowns as well as defence lawyers. At the outset of your career, when you are learning and growing as a lawyer – you will inevitably have to spend more time then you are paid for to adequately prepare. Extra time may be needed to research a legal issue, to organize the file or to look up procedural issues and plan the way you’ll approach the case. You will never get paid appropriately for preparing your files. But this is where you have to invest your own funds (in the form of your time) in yourself. Your reputation as a lawyer is largely founded on how you present in court, and how prepared you are at all stages of the process – bail, CPTs/JPTs, and trials. Your reputation is what will give you self-respect as it relates to your career – but is also what will proceed you and factor into your interactions with judges, Crowns and other justice participants. If you are well prepared and reasonable, you will become known as such – and this will help you, even if you are not always successful in winning the case for your client.

This job is not all about your clients, its about the bigger picture and what you can do as a lawyer. The best way to make great strides as a lawyer is to establish a great reputation for yourself from the outset. This is because the best way to work in this profession is to be amicable with the other justice participants, which is all founded through mutual respect. You have control over this! You can mould your own reputation by putting in the extra work!