common terms
Here you will find a list of common terms used in criminal defence, along with a simple definition/explanation for each
steps to resolving your criminal charge
If you’ve been charged with a criminal offence, the court expects you to take several steps on your way to getting your matter resolved (be it by guilty plea, trial, withdrawn, etc.).
Remember that your first court appearance isn’t a trial or a hearing. That first court appearance, and the ones that follow, are about keeping the court updated on your progress through the steps, set out below
- Obtain and review Disclosure
- Discuss the matter at a Crown Pre-Trial/Resolution Meeting
- Get input from a judge at a Judicial Pre-Trial
- Pre-Trial Motions/Hearings
- Preliminary Inquiry
- Evidentiary Hearings
- Trial
- Sentencing (if found guilty)
*A charge may be withdrawn by the Crown or stayed by a judge at any stage.
** There will be regular court appearances in what is known as a remand court as an accused goes through the steps. The purpose of these appearances is to satisfy the court that an accused’s matter has not stalled and to raise issues that may delay progress such as outstanding disclosure.
adjournment
Whenever someone is charged, the court will expect that person to go through a number of steps. These steps are designed to help resolve a matter without the need to go to trial. [Link to “I’ve been charged, what to expect etc]
In order to make sure matters progress along these steps (and don’t get forgotten about), your matter will appear before the court, usually every few weeks, to give a justice of the peace or a judge an update.
Whenever we appear before the court and ask for more time to do one thing or another, this is what we refer to as an “adjournment”.
For example: “This matter is adjourned three weeks to allow the defence to meet with the Crown.” or “This matter is adjourned to the trial date scheduled for January 29, 2025.”
Bench Warrant (with Discretion/to Hold)
When charged criminally, people are given specific dates to appear before the court. In turn, the courts are given compellable powers to ensure that accused persons attend. These powers include the issuance of discretionary bench warrants, endorsed bench warrants, or unendorsed bench warrants.
Typically, a bench warrant is issued by a judge when an individual fails to attend a scheduled court date, hearing, or trial. When issued, a bench warrant gives the police power to arrest the named person and hold them in custody until they can be brought before the court and may result in further criminal charges.
Another option the court has for individuals who miss their court date is a discretionary bench warrant. This type of warrant does not allow the police authority to execute an arrest before a date specified by the court. Commonly, the matter is adjourned to that date to allow the accused person a chance to appear in court. If the person appears before the court at that time, the warrant is officially rescinded. On the other hand, a failure to appear will likely result in a bench warrant being ordered and further criminal charges being brought.
At the time a bench warrant is issued, a determination is made to either endorse a warrant or not. An endorsed warrant will be signed by a judge or justice of the peace, and allows an individual to be released from custody when they are arrested. If unsigned, the bench warrant is unendorsed, and does not allow police to release the individual from custody before they are brought before the court.
Endorsed v. Unendorsed Bench Warrant
If a bench warrant is endorsed for release, that is an instruction to police that when the execute that warrant (meaning, they have found the person, potentially arresting them), they can release that person with their new court date (just as if they were charged for the first time and released on an Undertaking).
If the warrant is unendorsed, when police find that person, they are to hold that person for the court to determine whether or not he or she should be released.
Case Management, Intensive Case Management Court (JICMC)
When you are charged with a criminal offence, your matter will generally be heard in a remand court, before a Justice of the Peace. This court is responsible for ensuring matters move along the required steps in a timely manner.
When a matter has been before the court for too long and has stalled at one of the steps, the Justice of the Peace may order that it be placed before a judge into a case management or in London, the JICMC court.
A judge will generally put more pressure on the Crown and the accused to keep the matter moving. This may be through order that disclosure be made available by the next date, the accused must appear for every court appearance until the matter sees movement, or ensuring that every appearance now take place between him or her.
Realistically, a case management court is no different from a remand court save for more pressure being applied by a judge to keep things moving. If matters continue to progress, appearances in this court are usually brief and unremarkable.
Complainant
A complainant, simply put, is the person who made a complaint about a criminal act.
This may or may not be the victim. For example, if you observed one person assaulting another and reported that observation to police, you would be hard-pressed to say you were victimized by that act.
If the person who was assaulted reports that assault to police, technically they would be a complainant and a victim.
However, depending on who you ask, some (present company included) prefer to describe a victim as a complainant−at least until the allegations have been proven in court.
This is because referring to someone as a victim presupposes the truth of the allegation. And for better or for worse, our system is founded on the presumption of innocence.
(The) crown
When we speak of the Crown in the context of criminal defence, we are usually referring to the Assistant Crown Attorney. Put simply, this is what we call our “prosecutors” who are the lawyers responsible for prosecuting the case against the accused.
Crown Pre-Trial/Resolution Meeting
After disclosure has been received and reviewed with the accused, the next required step is for your lawyer and the Crown to meet and discuss your charge. This can take place by email or over the phone and may be as simple as asking the Crown, “what deal can you offer us?”
Otherwise, discussions can include asking for additional disclosure, providing evidence to the Crown that supports the accused’s version of events, identifying arguments to be made at trial, and speaking about the strengths and weaknesses of those arguments based on prior decisions in court.
The idea behind these meetings is to give both sides a chance to speak with the hope of resolving the matter thus saving court resources. If a Crown Pre-Trial does not resolve the matter, the next step is often having a Judicial Pre-Trial.
In London, Ontario, Crown Pre-Trials are often done through email and include filing a Trial Readiness Certificate.
disclosure
Disclosure is the term we use to describe, generally speaking, all of the information the police and the Crown have that was produced as a result of the investigation. This includes,
Witness statements (written, audio, video)
Officer notes (from their duty book that they carry on them and their typed notes written afterwards)
Surveillance video
Video recordings from the police station (and from dash cams or body cameras where applicable)
Including video from the “breath room” when someone is charged with impaired driving
Criminal records of the accused and witnesses
A list of items seized by police
Expert reports
The list is by no means exhaustive and should be reviewed with you once received. Remember, however, that disclosure may not be ready by your first court appearance and may be released in stages. Sometimes it may be months before all the disclosure is available for review.
Ignition Interlock Program (Reduced Suspension with Ignition Interlock Conduct Review Program)
The Ignition Interlock Program, offered by the province of Ontario, applies to those charged with alcohol-related Impaired Operation (DUI) charges. So if you’re convicted of Impaired Operation, 80 Over, or Refusal—or a combination of the three—the program applies. Impaired by drug or a combination of alcohol and a drug is not eligible for the program.
The program consists of three streams: Stream A, Stream B, and Stream D. (There’s no “C”)
On a first offence for one of the three charges mentioned, the Criminal Code imposes a minimum punishment that includes a one year driving prohibition. In this case, Stream A and Stream B apply.
Stream A: Stream A applies only if the accused enters a guilty plea within 90 days of being charged.
Assuming you are sentenced to the mandatory minimum 1 year driving prohibition, Stream A states that if you take the Back on Track remedial measure program (an alcohol abstention and informational workshop) and have the ignition interlock device installed in the vehicle you are driving,
You still won’t be allowed to drive for the first three months of your one year criminal suspension;
However, for the remaining nine months of your suspension, you will be allowed to drive.
Stream B: This stream applies where a person does not enter a guilty plea within 90 days of being charged. It applies regardless of whether you enter a guilty plea after 90 days of being charged or even if you go to trial years later and are convicted.
With Stream B, instead of waiting three months to drive like you would with Stream A, you will have to wait six months; and, instead of driving with the ignition interlock device for the remaining nine months, you will have it for 12 months.
So the simple difference between Stream A and Stream B is an extra three months of no driving, followed by an extra three months with the ignition interlock device.
Stream D applies where the accused is convicted of a second Impaired Operation, 80 Over, or Refusal—within 10 years of the first—AND pleads guilty within 90 days of being charges.
In the case of Stream D, you will not be permitted to drive for the first nine months of your criminal suspension, followed by 19 months of ignition interlock.
IMPORTANT: If Stream D applies to you, know that if you plead guilty after 90 days or are convicted following a trial, the penalty is harsh: the province will prohibit you from driving for three years followed by three years of ignition interlock. A total of six years of sanctions!
ELECTION
All criminal offences in Canada fall into three categories — summary offences, indictable offences and hybrid offences. Hybrid offences mean that the Crown has the discretion to proceed by summary conviction or indictment. This means that the Crown will view the circumstances of the case to decide how to best ensure the interests of justice are met.
Typically, summary offences are less serious than indictable offences. However, many offences fall into the hybrid category. This decision will impact the sentences available if a conviction occurs. Before the Crown elects, a hybrid offence is treated as an indictable offence, pursuant to the Interpretation Act.
Peace Bond, 810, Common Law Peace Bond, Sureties to Keep the Peace
Simply put, a peace bond—be it a statutory one such as an “810” or a common law one—is a promise to the court. When a person enters into a peace bond, they are promising the court that they will do something, refrain from doing something, or both. In exchange for entering into a peace bond, the Crown will generally withdraw the criminal charge(s) against the accused.
A peace bond is not a criminal charge nor, contrary to popular belief, is it to show on any level of criminal record check (at least in Ontario).
Common terms found in a peace bond:
- “Keep the peace and be of good behaviour” (i.e., stay out of trouble)
- Stay away from a person or any place the work, study, or live
- Do not communicate with that person, except with their revocable consent. (More on this below.)
- Do not possess any weapon
Less common terms:
- Complete counselling or a specified program. (Usually a specific program like Partner Assault Response (PARs) geared towards domestic violence)
- Do not consume alcohol or drugs. Submit to random testing
- Do not use the Internet
- Do not attend a public park, swimming pool, daycare, school ground, playground where persons under the age of 16 are likely to be present
- Any other term the court deems appropriate
Of these terms, the most common discretionary terms are the ones promising the court to stay away from where the person may be, and to not communicate with that person. This person is usually the same one who made the criminal allegation against the accused.
Revocable Consent
Let’s assume it is you entering into the peace bond. If the person you are promising not to contact is a stranger, avoiding him or her is not likely going to be a problem. What if that person is a romantic partner or family member and the two of you want to reconnect? That is where the term “Written Revocable Consent”, “Oral Revocable Consent” or simply “Revocable Consent” comes in.
Now let’s say that the other person in this scenario is named Karen. If the condition, “do no communicate with Karen” is followed by the clause, “except with her written/oral revocable consent”, this means you are to stay away from Karen unless she says it is okay for you to do so. With that said, the “revocable” part means Karen can revoke that permission—at any time—and you will have to go back to your original promise to the court until Karen consents again, or the peace bond expires.
Types of Peace Bonds
There are two types of peace bonds: a statutory peace bond which means that the authority for the court to make such an order is written into law. By far the most common statutory peace bond used is found under section 810 of the Criminal Code, hence the reason we refer to such orders as an “810”.
The second type of peace bond is known as a common law peace bond. Our system of common law is built on a foundation of over a thousand years of legal precedents and traditions. One of those is a court’s authority to make orders to ensure public order.
A peace bond may also be described as “entering into a recognisance” (not to be confused with a recognisance of bail) because there is a pledge of money connected with the promise to the court. This means that if a person breaches the terms of the peace bond, that person is liable to the court for the money pledged at the time of entering into the peace bond.
For those wondering if there is a difference between entering into one form of peace bond over the other, the answer is no. Different jurisdictions have their preference. With a statutory peace bond, a document called an information needs to be prepared and sworn by a police officer but once entered into, you have the paperwork ready that is easier for police to have entered into their system. A common law peace bond can be done on a whim before a judge. It will have the same force as a statutory one but may not be forwarded to police, at least not promptly.
Lastly, there are various types of statutory peace bonds that follow the one highlighted at section 810. These include 810.01 relating to the intimidation of a justice official, or an offence involving a criminal organisation; 810.011, a terrorism offence; 810.02, fear of being compelled into a forced or underage marriage; 810.1 fear of a sexual offence; and 810.2 fear of serious personal injury. Given the broad scope of an 810 and common law peace bonds, however, they are rarely used.
Why Enter into a Peace Bond?
If you have been charged with a criminal offence and the Crown offers to resolve the matter with a peace bond, most times, but not always, you’ll want to seriously consider accepting the offer. A peace bond is a compromise; a way to keep both sides happy so to speak and entering into one may save you a lot of time and money.
For the Crown, if someone were to fault them for withdrawing a charge instead of taking it to trial, they can say they took the precaution of giving the complainant (the “victim”) the power to keep the accused person away from him or her. For the accused, you avoid the risk and expense of a trial. Yes, your freedom is limited in that you cannot communicate with the complainant and may not be able to go to places where that complainant may be, but in return, your criminal charges are withdrawn without the expense and risk of going to trial.
And again, a peace bond is not a criminal charge nor is it to show on any level of criminal record. (At least in Ontario.)
When to think twice about a peace bond:
- If it is not the result of a criminal charge; but a person who claims you have done something to make them fear for their safety or the safety of another. (See Pursuing a Peace Bond on your Own (And why you shouldn’t))
- If the evidence against you is extremely weak, to the point your lawyer questions why the Crown does not drop the charges altogether.
- When the allegations are entirely false. You and your lawyer agree it is simply not right for you to be bound by such an order/promise to the court.
Pursuing a Peace Bond on your Own (And why you shouldn’t.)
Let’s say you have a problem with a neighbor who won’t leave you alone. You called police but they refuse to lay a charge. Well, if you still feel like you have reasonable grounds to fear that another person will injure you or a loved one, damage your property, or will publish an intimate image of you (odd, but true), then you can go to the court directly and ask that a peace bond be laid against that person.
Sounds great-especially if they police won’t help-but it’s likely do be a long, exhausting process. Why? Because unless the other person consents to entering into it, they have the right to make you prove that the court should impose a peace bond on them.
That means a hearing (a trial of sorts) will have to be held months down the road where you will have to call witnesses that your neighbour (or their lawyer) will be able to question. They can call witnesses to dispute your evidence. In short, you will have to run a trial and do all of the work in between. Trust us when we tell you it’s not worth it. Your efforts are better spent working with police to resolve the matter. (Remember, if a charge is laid, they will lay terms prohibiting that person from speaking with you or coming near you. It will also be the Crown (prosecutor) who runs a trial, not you.)
If you’re dead set on doing this, go to your local courthouse, find the criminal court office (of the Ontario Court of Justice, not Superior Court), and let them know you would like to “lay a peace bond”. They should be able to give you the proper paperwork to fill out and one complete, a day for you to appear before a Justice of the Peace.
Remand Court (Your first court date)
When someone is charged, the court expects that person—usually through their lawyer—to go through a series of steps. These steps are designed to help parties come to an agreement on how a matter should resolve thus avoiding the need for a trial. (These steps are outlined at the top of this page.)
It can take months, sometimes years, to go through these steps and get to trial. In order to make sure matters are not forgotten about and ensure they continue to move through the steps, an accused, through his or her lawyer, is expected to make regular appearances in court to give an update. This is done in a remand court, usually before a Justice of the Peace (they wear a green sash as opposed to the red one worn by judges).
In London, for example, remand court is in courtroom four. The day of the week you matter appears on is determined by your last name or if your charge is a federal matter (usually being drug charges under the Controlled Drugs and Substances Act or CDSA).
Mon: A – C
Tue: D – K
Wed: L – P
Thu: Q – Z
Fri: Federal Matters
While remand courts generally open at 9:00 am or 9:30 am, they usually have a lot of people and their matters to address; therefore, the court can fun for an hour or two or for the entire day. Lawyer go first (usually based on seniority) then self-represented individuals.
On a first appearance, your lawyer will let the court know that he or she represents you, identify your preferred language (English or French), waive the reading of your charge(s) (you have the right to have your charges read out loud to you), and that they will order disclosure from the Crown. Your lawyer will suggest a return date to provide the court with an update. This date will usually be a few weeks out. At that point, your appearance is complete.
At the next date, for example, you lawyer may advise the court that disclosure was received and reviewed and that now he or she needs an opportunity to meet with the Crown. (i.e., the Crown Pre-Trial/Resolution Meeting.) Again, a return date will be offered for an update.
These appearances continue until a date for a plea or trial is set.
Judicial Pre-Trial
A Judicial Pre-Trial conference is a meeting where a judge, your lawyer, and the Crown meet and discuss your charge(s). This takes place following the Crown Pre-Trial and includes similar discussions such as identifying arguments to be made at trial, providing necessary background information to shed light on your matter and to go over resolution options. What differentiates a Judicial Pre-Trial from a Crown Pre-Trial is that a Judge is present to hear both sides of the matter and to provide judicial input on your matter.
Judicial Pre-Trials have a dual purpose: to help resolve matters and to undergo case management for trial.
Judicial Pre-Trials typically discuss whether a matter may resolve outside of a trial. Judges have many years of experience and are able to view a file as a neutral third party. Given that, Judges are able to provide helpful insight to resolve matters in an efficient way and can address the strengths and weaknesses in the file.
Additionally, Judicial Pre-Trials discuss case management of the trial. This depends on the nature of the charge(s), but includes factors such as the length of time required to complete the trial, how many Crown witnesses will testify at the trial, whether complainant or witness supports are required during the trial (such as testifying with a support person or from a different room outside of the Courtroom), and whether any motions will be brought by your lawyer or the Crown before your trial.
Preliminary Inquiry/Preliminary Hearing
Think of a preliminary inquiry (PI) as a dry-run before the trial itself. There are two types of PIs: (1) where you are challenging committal and (2) where it is held for discovery purposes.
Committal: historically, a preliminary inquiry was designed as a protection for the accused where the accused does not believe there is not enough evidence to warrant proceeding to trial; said another way, the accused is saying they should not have to bear the burden of going to trial because the Crown has a weak case.
The test for committal, however, is a low one: a matter will proceed to trial if the Crown puts forward evidence where “upon which a reasonable jury properly instructed could return a verdict of guilty. This means that if on the face of the evidence presented, a judge or jury could be satisfied that a person is guilty of the offence he or she is charged with, then the matter must proceed to trial. Conversely, if the evidence is too weak, the the judge will stay the charge and the accused will be free to go.
Discovery: When your preliminary inquiry is being held for discovery purposes, your essentially admitting that there is enough evidence for your matter to proceed to trial; however, first you want an opportunity to question witnesses to discover more evidence in advance of the trial.
This may be to ask a witness questions that weren’t asked by police, to get a feel for the witness and how he or she will testify, to question a witness who police haven’t spoken to but could be important to your case, etc.
Don’t pass up the opportunity to have a discovery preliminary inquiry lightly. This is an important tool, that is only available for a select-few charges, when preparing for your trial.
You were once eligible to have a preliminary hearing anytime you were charged with an indictable offence. As of September 2019, this is no longer the case. Now, an accused must be charged with an indictable offence where the maximum punishment is 14 years of more. Some common examples: Sexual Interference, Sexual Assault on a person under the age of 16, Trafficking, Possession for the Purpose of Trafficking.
Trial readiness certificate (TRC)
In some jurisdictions, a form is completed following the Crown Pre-Trial/Resolution Meeting that sets out the parties’ position as they head into trial. These forms include information such as,
- Number of witnesses to be called
- What, if any disclosure, is still outstanding
- If any application are being brought in advance, or during, trial
- Such as arguing evidence should be excluded for a breach of an accused’s Charter rights, charges should be stayed for taking to long to get to trial, are applying to use records such as text messages in sexual offences.
- If experts are being called
- And the estimated length of a trial
When these are prepared, it doesn’t automatically mean your matter is going to trial; however, it’s the next step following a meeting with the Crown when that meeting doesn’t resolve your matter.