Updated November 2016
This How-To Brief outlines the steps to take when preparing a defence to a charge under the Provincial Offences Act, R.S.O. 1990, c. P.33, from initial interview to trial preparation.
1Interview the client
- Carefully review all documentation provided to the client by the police.
- Gather all additional documentation relevant to the allegations that is in the possession of the client or potential witnesses.
- Obtain and review the process compelling your client's attendance at court.
- Obtain general background information from the client such as
- name, date of birth, address and telephone number(s)
- first language—request an interpreter if needed for the client or witness
- marital status and names and ages of spouse and children
- immigration status and resident history
- education history and future plans
- employment history and sources of income
- ability to pay fine, including a surcharge
- mental and/or physical health and treatment issues (if applicable)
- criminal and/or provincial record of offences (or other relevant governmental record of misconduct), with explanations
- bail, probation or other court or administrative orders or agreements in effect—with contact person to confirm compliance
- outstanding charges
- character references
- other good character evidence (e.g., community work)
- Obtain details about the allegations against your client:
- client's version of the allegations and evidence.
- details of any co-accused
- names and contact information for all possible witnesses
- steps taken to comply with the law (reasonable care, due diligence, etc.)
- steps that could have been taken, with reasons for not doing so
- whether the client or any other witness was impaired by alcohol or drugs
- whether the client impeded the investigation
- details of all contact with the authorities
- details of the conduct of officers toward the client including any complaints with respect to treatment (consider relief under the Canadian Charter of Rights and Freedoms)
- date, time and place of next court appearance
- date, time and place of alleged offence
- Discuss the prospect of hiring a private investigator.
- Consider whether an expert such as an accident reconstructionist might be necessary.
2Request disclosure from the Crown
- Request in writing, obtain and review the disclosure.
- Consider possible Charter applications.
- As the case unfolds, consider additional disclosure requests.
3Obtain relevant documents
- Obtain and preserve all relevant documentation:
- documents served on your client
- all relevant correspondence and notes
- employment or business records
- expert reports
- photographs, diagrams and/or videos
4Research and investigate
- Review the documents with a view to determining compliance with procedural requirements and facial validity (consider limitations, proper service, confirmation of process, filing times, etc.).
- Attend the scene and direct a witness or expert to record the details of scene as soon as possible (photograph, videotape, diagram using accurate measurements, etc.).
- Read the applicable legislation and all relevant case law.
5Conduct a second interview with the client
- Ask questions clarifying matters raised by the disclosure and physical evidence.
- Discuss your opinion of the strengths or weaknesses of the case.
- Obtain written instructions from the client on how to proceed.
- Advise the client of possible consequences of a finding of guilt.
6 Attend the trial/enter a guilty plea
- If the matter is proceeding to trial, ensure witnesses are subpoenaed.
- Independently prepare the client and/or witness to testify.
- If a witness who appears in the Crown brief has helpful evidence to provide for the defence, ensure the Crown will have that witness at court and confirm the undertaking in writing. Failing an assurance from the Crown that the witness will attend, subpoena the witness. Alternatively, depending on the circumstances, seek an agreed statement of fact from the Crown regarding the evidence of the witness.
- Plan final submissions and keep them in mind when preparing witnesses to testify.
- Plan cross-examination of all Crown witnesses and the examination-in-chief of all defence witnesses.
- Consider discussing the case with the Crown to secure a withdrawal.
- Prepare and file the appropriate notices for all pre-trial applications
- If the client chooses to enter a guilty plea, obtain clear unequivocal written instructions outlining the aspects of the plea comprehension hearing including but not limited to possible penalties, ancillary orders, the right have a trial, admission of essential elements of the offence, admission of mitigating and aggravating facts, voluntariness of the plea, an understanding that even a joint submission is subject to the approval of the presiding judge or justice etc.
7 Statutes and Rules
- Provincial Offences Act, R.S.O. 1990, c. P.33
- Highway Traffic Act, R.S.O. 1990, c. H.8
- Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to
the Canada Act, 1982 (U.K.), 1982, c. 11Criminal Code, R.S.C. 1985, c. C-46