Arrested? What’s Next?

Arrested by the police and the Crown Attorney is not consenting to your release? Securing one’s freedom in the most expedited manner is the most important step after an arrest.  Everyone that is arrested is presumed innocent until proven guilty.  With that presumption of innocence, our legal system, for most charges, allows those that have been arrested to appear in court for a Show Cause Hearing (Bail Hearing) within as little as 24 hours of an arrest presuming there is court-time available for such a hearing.

The Bail Hearing is a judicial proceeding whereby the Justice of the Peace determines if a person charged with a criminal offence should be detained in jail as they await a trial or a resolution-court.  A Bail Hearing can be as little as an hour for the less serious charges or may proceed for days for the more serious and complex charges.  Notwithstanding a section 524 Arrest, for most charges an accused is presumed to be allegeable to be released from custody unless the Crown Attorney can “show cause” for the person’s detention in jail – that means that the Crown Attorney has to “show cause” why a person’s freedom ought to be taken away although the person remains innocent of the charge until found guilty by a Judge.

To ensure that a Bail Hearing secures a person’s freedom, a viable plan must be presented to the Justice of Peace during the course of the Bail Hearing.  The plan must cover the concerns which may be raised by the Crown Attorney during the Bail Hearing.  The Crown Attorney’s concerns are found in section 515 (10) (a), 515 (10) (b) and 515 (10) (c) of the Criminal Code of Canada.

In most cases a “Surety” will be the essential element of “the plan”.  A Surety is a person that knows the accused and is willing to supervise the conditions of their release as per the order of the Court.  The Surety may be a family member, a friend, or a person from the community.  The Surety plays a vital role as they are trusted by the court to ensure that the accused attends court and complies with any court conditions.

If you or a loved one is ever arrested, make sure you call a lawyer in order to assist you in every step of the procedure and to ensure that you have your freedom while you await your trial or resolution court.


Paths after a Bail Hearing

In our last issue we discussed the process of a Bail Hearing.  As a reminder, a Bail Hearing takes place after an arrest and a criminal charge by the police.  The purpose of the Bail Hearing is for a Justice of the Peace (JP) or a Judge to determine whether or not the Crown has shown cause for the detention of the accused.  Whether an accused is detained in custody or released after a Bail Hearing, the criminal procedures are in their beginning stages.

In essence there are 2 paths to deal with a Criminal Charge.  Each of the paths require different procedures.  The accused may wish to resolve the Criminal Charge via plea or request a trial.

If the accused wishes to resolve the Criminal Charge via plea, the lawyer will meet with the Crown attorney to engage in “resolution discussions” in an attempt to reach a favourable resolution.  The lawyer may then set a Judicial Pre-Trial date in court.  In the Judicial Pre-Trial, the lawyer will meet with the Judge in the Judge’s chambers along with the crown attorney and discuss a possible resolution.  Following the Judicial Pre-Trial, a plea and disposition date is set before the same Judge that presided over the Judicial Pre-Trial or a different Judge.  On the date of the plea, the accused will plead guilty to the agreed charges.  If there is an agreed resolution between the lawyer and the Crown Attorney, both the crown and lawyer will advocate for a “joint position”.  If there is not an agreed resolution, the crown will state their position on sentencing and the lawyer will advance his/her position on sentencing.  The criminal code makes it clear that the ultimate decision on sentencing belongs to the Judge even where there is a “joint position”; however, for the most part, Judges honour “joint positions”.

If the accused wishes to have a trial.  The lawyer will set the trial date.  If the charge is indictable, the accused may have the trial in the Ontario court of justice or the Superior Court of Justice.  If the accused elects the Superior court of Justice, the accused may request to have a preliminary hearing prior to the trial to test whether or not there is any evidence to commit the accused to trial.  If the Judge presiding at the preliminary hearing finds that there may be evidence which a trier of fact may convict the accused on, then the accused is committed to trial.  However, if at the preliminary hearing there is insufficient evidence whereby a trier of fact may convict the accused on, then the accused is not committed to trial and is done with the charges.  A trial in the Superior Court of Justice the accused chooses to have the trial conducted by a Judge and Jury or a Judge alone.  If the charge is summarily, the trial takes place in the Ontario Court of Justice before a Judge alone.

Whether an accused charged with a Criminal Offence wishes to “resolve” their matter or take their charges to trial, it is always recommended to retain a lawyer to best protect their rights and ensure the best results.



Burden of Proof: Beyond a Reasonable Doubt

Our Judicial system is fortified by the concept of “burden of Proof”.  The Burden of Proof is a hurdle that must be overcome by one party over another in order to be successful in court.  There are several levels of the burden of proof.  Each level of the burden of proof is utilize for different judicial processes.

The highest level of burdens is Beyond a Reasonable Doubt.  Without surprise that level of proof is utilized in criminal matters.  The burden must be overcome by the Crown Attorney.  If the Crown Attorney is unsuccessful in overcoming the burden of Beyond a Reasonable Doubt, then the accused will be found not guilty of the charge.

Because Beyond a Reasonable Doubt is the highest levels of proofs and because the burden lies on the Crown Attorney to overcome it, this makes it the strongest card held by Criminal Defense Lawyers in any criminal charge trial.

The Supreme Court of Canada in R. v. Starr elaborated on a way to explain to a jury that proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

No matter what the criminal charge may be, whether it is murder or simple assault, a criminal defense lawyer may be able to raise doubt in the mind of a Judge or Jury to acquit the accused of the charges before the court.



Purchasing a Home

Looking to purchase a place to call home? Purchasing Real Estate is the single most important decision most people make – Don’t start that process on the wrong foot, retain a lawyer from the very start.

Purchasing a home, whether it be a house or a condominium, requires a lawyer.  Since a lawyer is required, then it is highly recommended to start the process of purchasing a home by seeking out a lawyer that will provide legal advice every step of the way and finalize the transaction.

The process of purchasing a home involves securing financing, finding the proper home, and purchasing the home.

For most people, securing financing, means that they will require to be approved for a mortgage with a Bank or a lender.  The process involves many legal documents to be signed which may bind the parties for many years to come.  It is always advisable to seek the advice of your lawyer to ensure you are fully aware of what you are signing.

Once a pre-approval of a mortgage is secured, people tend to look for a home within the secured price range.  Most people seek the help of real estate agents to guide them through that searching process.  A real estate agent working for your interest requires a binding contract between you and that agent.  The contracts are standard, but the advice of a lawyer is always advisable in order to ensure you know what you are signing.

Once a home is found, you will be required to make an offer on the home.  In most cases, the real estate agent will have a standard contract for offers.  The contract is binding on the parties once accepted; therefore, it is vital that you know exactly what you are signing.  Seeking the advice of a lawyer may ensure that you get exactly what you are paying for.

Finally, once the contract is binding on both parties and a closing date is set the lawyer begins to search the title.  There are several steps in this process and they must be done with great detail.  The lawyer, representing both you and your bank, will receive instructions from your bank.   The lawyer then acts in accordance of the instructions.  At the end of the process, the title is registered in your name and a mortgage is registered on the property in favour of the bank which funded the transaction.

At the end of the day, a lawyer is needed to complete a real estate transaction.  Approach a lawyer at the very beginning in order to ensure everything is done smoothly and seamlessly.



Selling your home

Selling your home is a Real Estate transaction.  As discussed in prior articles, when dealing with the transfer of Real Estate property from one party onto another a real estate lawyer is required in order to complete the transaction.

Selling your home may involve acquiring the services of a real estate agent.  If a real estate agent is selling your home on your behalf, it will be necessary to sign a contract with the real estate agent.  The contract, as one may expect, is binding on the parties.  It is advisable that you consult a real estate lawyer early in the process in order to ensure you are fully aware as to what is being agreed upon.

Once a potential purchaser places an offer on your home, a contract will be handed over to you for your consideration and signature if you choose to accept the offer.  The contract is standard, but there may be additions or adjustments to clauses that may affect your rights.  Because this contract is the single most important document in the sale of your home, it is highly advisable that you and your lawyer review it together prior to signing the contract.

The signed contract will include two important dates.  The first important date, which is most relevant to the seller, is the closing date.  The second important date, which is important to the lawyers, is the requisition date.  The requisition date represents the cutoff date by which the purchaser’s lawyer may request action from the seller’s lawyer.  The closing date, to the seller, represents the day that the seller will be paid for the sale of their home.  However, the closing date to the seller’s lawyer represents the day whereby title is transferred from the seller’s name to the purchaser’s name and funds are disbursed accordingly.  In addition, if the seller has an outstanding mortgage at the time of closing then the lawyer of the seller will ensure that the mortgage-holder is fully paid and the mortgage is removed from the title of the real estate property.

There are several steps before you are able to sell your home.  To ensure that your legal rights are protected at every stage of the process, make sure that the first step is to seek and retain a real estate lawyer.



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