There are three stages to a criminal case: the Analysis; the Negotiation; and, if necessary, the Trial. Every case goes through an analysis and a negotiation, but only a minority of cases require a trial.
Once you have been arrested and charged with a criminal offence, and once the issue of bail has been resolved (either by a station-house release or a bail hearing in court), the case is turned over to the Crown Attorney for prosecution in the courts. While the police will still have some influence over the proceedings, they are no longer in charge at this point: the prosecutor is now the decision-maker, until such time as a judge is called upon to make rulings.
The court process is complex. Each jurisdiction and each courthouse has its own rules, policies and procedures built up over the years. It takes an expert with knowledge, experience and a network of contacts to guide you through this labyrinth. At The Defence Group, we have years of experience, at all courthouses in Southern Ontario. We know how to navigate the bureaucracy and cut through the red tape.
The court process in criminal cases has three parts to it: the Discovery Phase; the Negotiation Phase; and the Trial Phase. The only way to win your case is for your criminal defence lawyer to defend your case vigorously and proactively at each stage.
Before we start giving advice and making decisions about how to defend you, we need to know what you are up against. This “Discovery” phase, which is also known as the “Information Gathering Phase”, begins with collecting all of the facts and information that the police and prosecution have about the case. This package of material is called “disclosure”. While anyone can ask for disclosure, it takes the experience and skill of a good lawyer to identify the information which the Crown has not provided, and to seek it out.
At The Defence Group we take a proactive approach to disclosure. We do not sit back and wait to see what the government chooses to give us. We act immediately to demand disclosure of all of the material that could possibly have any bearing on the case, no matter how indirect or unimportant it may seem at first. We carefully review the primary disclosure brief to find out what other information might be missing or concealed, and then we track it down. This process is ongoing and continues throughout the case to ensure that nothing is left to chance. Seeking out every last bit of disclosure is a vital part of the service we provide, because our experience has taught us that cases will often be won or lost on tiny details that might not seem important at first.
Some of the most notorious miscarriages of justice occurred because inexperienced or ineffective counsel fail to properly investigate the case, and fail to seek out all of the information that might help their client. At The Defence Group, we have had many years of experience working both for and against the government. So we know what information to look for, and how to get it.
By knowing what the government knows, we at The Defence Group can put ourselves in the Crown’s shoes, and see what they see. The more you understand your opponent, the better prepared you are to challenge him. Knowing what the Crown knows, however, is just the starting point, because there is a whole other side to the case: the information that you as a client have access to. The Crown is not privy to this material, and it can make all the difference to how your case turns out.
Once we have worked with you to collect or “discover” all of the facts, we will analyze all of this material, and sit down with you for a strategy session. We will review the case in detail, and discuss the various options open to us. What is the best possible outcome? The worst-case scenario? What are the odds of winning a Not Guilty verdict, or a withdrawal of the charges? What are the other options? What are the steps we need to take to achieve our goal? At the end of this step in the process, you will know exactly where you stand: what your goal is, and how we can achieve it for you.
This type of analysis and strategic planning is essential to winning your case, and winning it in the most timely and cost-effective way. Only a legal team with a great deal of knowledge and experience can perform this kind of analysis.
Remember: our goal at The Defence Group is to win the case for you. This means taking the time to learn the result that you, the client, are seeking, and then bringing together all of our knowledge, experience and extensive network of contacts to make it happen.
Once we have identified your goal, the next step is to achieve it. We begin this phase by engaging the government in a process of negotiation. If we can achieve your goal through negotiation, you will avoid the time, stress and expense of a trial. At The Defence Group, we win many of our cases through negotiation. We will prepare an extensive brief for the Crown Attorney to consider, and then we will engage the Crown in a process of discussion, of give-and take, and consultation, until we have successfully persuaded them to accept our position. When this happens, the client wins.
Negotiation works because courts are backlogged with cases. Prosecutors and police are overworked and lack the resources to fight each and every case to the bitter end. They must choose which cases to fight and which cases to settle. At the same time, they are subject to strict policies which can make it difficult to withdraw cases or settle them on terms that the defence is seeking.
The only way to achieve the result that you as a client are after is for your lawyer to persuade the Crown Attorney and the police that their case is too weak to fight, or that your position is a superior one. The Crown is under an obligation to drop cases that have “no reasonable prospect of conviction” or cases that are not in the public interest to prosecute. If your lawyer can persuade the Crown that your case falls under that category, then they will be more than happy to reduce their court backlog. But it takes a skilled lawyer to do this. A former cop or “court agent” has neither the skill nor the experience to do this. In fact, Crown Attorneys will not negotiate with court agents or “ex-cops”. Trials are riskier and far more expensive than negotiation, and take many months (sometimes years) longer. A court agent or an inferior lawyer will often go straight to trial and waste the opportunity to win the case through negotiation. As a client, this short-sighted approach is a waste of your time and your money, and likely your freedom as well.
The best person to engage the Crown in negotiation is a former Crown Attorney. At the Defence Group, our experience is one of our greatest strengths. Our managing director, Arun S. Maini, was both a former federal Crown Attorney and a former provincial Crown Attorney, and he knows how the prosecutors think. He has spent many years in their shoes, and knows many of them personally. He knows what their goals and policies and concerns are, and how to address them. In other words, he knows how to present a case, and what to say in a negotiation to persuade the Crown to accept the defence position. At The Defence Group, we win many of our cases at this stage because of our skill, our experience, and our extensive network of contacts. When we win at this stage, the client wins twice: you win the case, and you also save a great deal of money and time.
Sometimes, you have to fight to achieve your goal. Negotiations may stall; the Crown may stick to an unreasonable position; and you may be left with no other option but to go to trial.
At the Defence Group, we have excellent trial expertise. Mr. Maini, for example, has 15 years of battle-tested experience. A specialist in complex jury trials, he has fought and won hundreds of cases. Unlike court agents or even some lawyers, we are not afraid of the courtroom.
If a case must go to trial, we will fight to win.
Depending on the nature and seriousness of the case, a trial can proceed in either one stage or two stages. If the Crown is proceeding “summarily” with a simpler case, as they do with over 90% of criminal charges, then the trial will be held in one stage in the Ontario Court of Justice. If the case is more serious or complex, the Crown will elect to proceed “by indictment”, and the trial will usually take place in two stages, in the Superior Court of Justice.
When a case goes to trial, we will work with you to prepare the best defence. We will marshal the resources to attack the prosecution’s case and present the most effective defence possible. We will research the latest case law, and we will prepare you and your witnesses to testify. There are many tactics and strategies that can be employed, and we will make sure that you are fully informed and involved at every stage of the process, so that you know what is happening, and why. After all, while you have placed your trust in our knowledge, experience and network, you are the client and the case belongs to you.
In order begin to defend a criminal case, it is essential to know what the government’s evidence is. This is mainly the information collected by the police in the form of statements by witnesses; documents; audio-visual evidence; and the notes of the investigators. The evidence in the case will vary depending on the type of case. The evidence in a one-time allegation of a domestic assault will differ a great deal from that of a large and complex fraud, or a motor vehicle collision.
The Crown, who prosecutes the case, will make decisions based on the evidence that is provided to them. For that reason, it is important to know what that evidence is, so that the defence can anticipate the Crown’s position and plan an effective response.
The defendant in a criminal case has a constitutional right to know what the evidence is in the case against them. The evidence that is turned over to the defence is referred to as the “disclosure”. The lawyer will carefully review the evidence to make sure it is complete, and will perform an analysis to determine what options are available to the client. What is the best case scenario? The worst case? And what are the outcomes in between?
In addition to the government’s evidence, the defence will also seek to obtain evidence that will help the client. This can come from the client himself; witnesses that the client knows of; or evidence obtained from a private investigator. That way the defence lawyer will have a more complete picture of the evidence than the Crown will. This provides the defence with a strategic advantage over the prosecution.
Once the analysis is complete, the lawyer will meet again with the client to discuss options and strategy. What is the desired outcome in the case? What are the chances of achieving that desired outcome? What are the steps required to achieve that outcome? How long will it take? How much will it cost? These are all questions that a god defence lawyer will discuss with the client.
Prosecutors are busy; they often lack the time to fully review and analyze a file. That provides an opportunity to the defence to control the process to some extent by determining what information to share with the Crown, and in some cases to essentially do the Crown’s job of analysis for them. The goal of a negotiation is to persuade the Crown to accept the proposal that the lawyer and client have identified as the desired outcome for the case. The manner of doing so will vary from lawyer to lawyer and from case to case, but should involve a series of contacts and discussions with the Crown. These can take place in person, by phone, by email, and, at a later stage, can involve a judge (a procedure known as a judicial pretrial or “JPT”).
Every case has a negotiation component. In some cases, the negotiation results in the resolution of the case: a withdrawal of the charges, or a guilty plea. In other cases, the negotiation does not result in a resolution but leads to a trial. A good lawyer will present the client’s case in the most effective way, without compromising the client’s position should a trial later become necessary. In some situations, the lawyer will recommend that a client take counselling; perform community service; obtain treatment for addiction or mental health issues; or pay restitution before completing negotiations. In other cases where a resolution is not possible, the negotiation might consist of determining the terms of trial or preliminary hearing: which witnesses are required; the issues to be litigated; the time-frame, and so on.
In some cases, a trial becomes necessary. That might happen because the client is innocent of the allegations, and the Crown refuses to withdraw the charges. Or it might be because the best outcome the prosecutor is prepared to live with is not an outcome that is satisfactory to the client, and a trial might yield a better result. And in some cases a trial is necessary because the client simply does not have the option of being subjected to the consequences of a guilty plea (loss of a driver’s licence; a jail sentence; sex offender registration; or inability to enter the U.S.) and must fight to win an acquittal.
A trial can take place in one or two stages, depending on whether the client has the option of a preliminary hearing (90% of cases do not have that option). A trial should always be a last resort, because it prolongs the case and is very expensive. It is also risky: unlike a negotiation, the defence cannot control the proceedings to the same extent, or choose whether to accept the outcome. That is why all the options that might yield a favourable result for the client should be explored before setting a trial date.
A good defence lawyer will explain the entire process (analysis, negotiation and trial) to the client, as well as the various options available (including timeframe and cost) so that the client can properly make decisions about what to do. The client should be a full participant in the process, since it is the client who will have the live with the consequences. A good lawyer will always communicate fully and honestly with the client; will be available and easy to reach; and will explain the issues in a manner that is clear and easy to understand.