If you have been arrested by the police and are now required to navigate the criminal justice system, it is useful to know in advance what to expect, particularly with an eye to the latest changes to criminal court proceedings amidst the pandemic.

A number of things can happen after being arrested and charged. If the allegations are not particularly serious, and the accused does not have a criminal record, the police may release the accused on a "promise to appear" or an "undertaking". This means that the release is conditional on the accused's promise that he or she will attend court. An undertaking may also contain various other conditions including no contact with any complainant or a condition that the accused stay within the jurisdiction.

Bail Hearing

If the alleged offence is more serious, or there are safety or other concerns, the police may not be willing to release the accused. Instead, the accused will be kept in custody until they are brought before a court within 24 hours for a bail hearing. Due to the pandemic, the accused are no longer brought to the physical court but are typically held in custody at the police station or a provincial detention center. They attend court virtually – via either phone or video conference. 

At court, the Crown Attorney or prosecutor will decide whether they are agreeable to a release of the accused on a consent basis and the terms of that release. If the Crown Attorney is not agreeable to a consent release of the accused, then a Judge or Justice of the Peace will conduct a "show-cause" or bail hearing where the Justice will determine whether the accused will be released and the form of the release, or whether the accused will remain in custody while the trial of the charges is pending. 

In determining whether to release an accused, the Justice is to impose the least restrictive form of release possible. When making their decision, the Justice is to consider three grounds for detention, which are outlined in the Criminal Code of Canada. The first or primary ground is whether the detention of the accused is necessary to ensure he or she attends court. The secondary ground is whether the detention of the accused is necessary for the protection or safety of the public. The third or tertiary ground is whether the detention of the accused is necessary to maintain confidence in the administration of justice. This final ground typically arises with very serious charges and where the Crown has a strong case.

If an accused is released, they may be released with or without a surety. A surety is a person, often a friend or family member of the accused, who will have to promise to the court that they will supervise the accused to ensure he or she will comply with the bail conditions. The promise to supervise the accused often comes with a no deposit pledge of money that could be lost should the surety fail to properly supervise the accused.

Prior to the bail hearing, the accused's counsel and the Crown Attorney are encouraged to discuss the issues that the Justice presiding over the bail hearing will have to decide upon. This includes discussing the form of release and whether a surety is suitable or even required, as well as any proposed conditions of the release. Bail courts in most Ontario courthouses were very busy before the pandemic. That has only intensified. Given the current technological constraints, it is crucial to have the main issues sorted out in advance as much as possible.

Disclosure and Case Management

The next step after being released, or after a bail hearing, is to obtain disclosure. Disclosure is all of the materials and information the Crown has in relation to the charge(s). Every accused is entitled to receive all the documents the Crown has containing evidence against (or for) the accused, unless the documents are privileged or clearly irrelevant.

During the pandemic, the accused should usually not go to the courthouse to obtain disclosure, but rather contact the Crown Attorney's office that is prosecuting the case to ask them how to obtain their disclosure. Where possible and appropriate, the Crown will typically email or otherwise provide a digital copy of the disclosure via some form of electronic document sharing.

Under normal circumstances, disclosure materials would be provided at the first court appearance and additional court appearances thereafter. These appearances are criminal case management dates and they are held after an accused is charged but before the matter proceeds to trial or is resolved. The purpose of these dates is for the Crown and accused to advise the court on the status of the case and ensure that it is moving forward.

As a result of the pandemic, these case management court appearances are now held virtually and the accused or their lawyer can attend via ZOOM – either by video conferencing or calling in by phone. The ZOOM coordinates for case management courts in each courthouse in Ontario can be found in the latest notice and practice direction for criminal proceedings issued by the Ontario Court of Justice.

Navigating the criminal justice system as an accused is daunting under any circumstances. The ongoing pandemic has changed certain aspects of the system that may at times simplify the process, but may also make navigating the system more difficult.

Originally published March 8, 2021

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.