The Advantage of Retaining a Criminal Lawyer

There are two types of criminal offences in Canada, each with its own procedural phases: summary conviction offences and indictable offences. Most offences are dual procedure, or hybrid. This means that the Crown Attorney can elect to prosecute either by way of summary conviction or by indictment.

Summary Conviction Offences

These offences generally carry a sentence up to a maximum of six months imprisonment, with some exceptions. There are two procedural phases: pre-trial and trial, and an experienced Criminal Defence Lawyer can employ different strategies applicable to each phase.

The pre-trial phase consists of three procedural steps:

1) Obtaining complete disclosure of all the evidence from the Crown Attorney;
2) a Crown Pre-Trial meeting; and
3) a Judicial Pre-Trial.

When facing charges in the Toronto Courts, initial disclosure provided during the first or second court appearance is, in most cases, incomplete. A Criminal Defence Lawyer will carefully review all disclosure and make a second or third request for additional materials which appear to be missing from the disclosure package. These additional materials almost always turn out to be helpful to the client's case. Once complete disclosure has been obtained, the Criminal Defence Lawyer will review the materials with the client before proceeding to the next step.

In Toronto, a Criminal Defence Lawyer will schedule a pre-trial meeting with the Crown Attorney. An effective strategy for the Criminal Defence Lawyer is to fully canvass all the issues and identify any weaknesses in the Crown's case. In some cases, the Crown would then consider reducing or withdrawing the charges.

A Judicial Pre-Trial is a meeting conducted before a Judge with both the Crown Attorney and the Criminal Defence Lawyer present and, in Toronto, can be scheduled in most cases. An effective strategy for an experienced Criminal Defence Lawyer is to take this opportunity to again argue any weaknesses in the Crown's case and encourage the Judge to confront the Crown for the purpose of reviewing whether the charges should be reduced or withdrawn. As well, the Crown may indicate a sentencing position on an early guilty plea and this would also be discussed with the Judge. Once the issues have been narrowed down, and if a trial is to proceed, then there is a discussion of how many witnesses are expected to be called and how long the trial is likely to be.

Once the pre-trial phase is completed, the Criminal Defence Lawyer will discuss trial strategies with the client and obtain instructions to set a trial date. In Toronto, the trial would be conducted in one of the five courthouses of the Ontario Court of Justice.

Indictable Offences

These are the more serious offences, which can carry a maximum sentence from two years to life imprisonment. Most indictable offences provide the opportunity for the Criminal Defence Lawyer to elect to have a preliminary hearing before a Judge in the Ontario Court of Justice, which is conducted after the pre-trial phase and before the trial phase. In Toronto, there are five Ontario Court of Justice courthouses where criminal cases are heard: Old City Hall, College Park, Scarborough Court and two in North York. Similar to a trial, the Crown calls its witnesses and the Criminal Defence Lawyer has the opportunity to cross-examine each witness. There is no plea of guilty or not guilty, and there is no finding of guilty or not guilty. Instead, the Judge must decide whether there is sufficient evidence to go to trial in the Superior Court of Justice, located in downtown Toronto on University Avenue, which only deals with indictable offences.

This is a good opportunity for an experienced Criminal Defence Lawyer to test the Crown's evidence and expose the weaknesses in the Crown's case. If the Judge decides that there is insufficient evidence for a trial, then the charges are dismissed and the client is free to go. If a trial is to proceed, then the evidence given by the witnesses during their examination and cross-examination at the preliminary hearing can be used against them at trial by the Criminal Defence Lawyer.

To effectively represent a client facing criminal charges in Toronto, an experienced Criminal Defence Lawyer will take advantage of all of these opportunities to successfully dispose of the charges throughout all phases of the case.

Copyright © 2011 Steven Tress, Barrister and Solicitor. All Rights Reserved Worldwide.
About this Author

Steven Tress is a Toronto Criminal Lawyer with over 20 years experience in Criminal Law. His office is located at 425 University Avenue, Suite 500, Toronto, Ontario, M5G 1T6, and may be contacted for a consultation at (416) 977-3657 or via email: contact@steventress.com. For a detailed biography and other information, visit http://steventress.com/

Why Judicial Corporal Punishment Is Better Than Incarceration

Today, we naturally think of incarceration as more modern and advanced than judicial corporal punishment, but it's not true incarceration is always better. The facts clearly show prison does not rehabilitate or deter much crime and merely keeps criminals out of circulation while they are in prison. While the execution of judicial corporal punishment is horrendous and usually bloody, the effects of incarceration are worse. Prison takes offenders away from their families, marriages, jobs, friends, communities and churches and puts them in an extremely bad moral environment for years at a time. Incarceration does not provide the benefit of example, because it is hidden behind prison walls. In prison, convicts learn crime skills, join or re-join gangs, fight, go crazy or get depressed, suffer in solitary confinement, and adopt sick prison values and ways. Most of the time, prisoners do not learn the job and life skills they need to succeed on the outside. After their release, well over half wind up right back in prison.

All slave systems in history whipped slaves, which proves effectiveness. Stable nations using judicial corporal punishment today enjoy significantly lower crime rates than countries that do not. Historically, corporal punishment is abolished only because it is an unpopular reminder of lower social status. For example, as St. Paul reminded a Roman soldier, Roman citizens could not be flogged. In most Western countries, it was curtailed or abolished soon after political equality of citizens was achieved: In France after the French Revolution, in Germany after the revolution of 1848, in the United States after the American Revolution and then more completely after the American Civil War. After Great Britain abolished it, her crime rates increased markedly.

Ex-slaves interviewed as part of the Federal Writers' Project from 1936 to 1938 confirmed the effectiveness of corporal punishment, especially to discipline young males. Some ex-slaves said corporal punishment taught them valuable lessons. Female ex-slaves in particular observed that it was needed and effective. While we often associate flogging with slavery in the United States, it was used effectively by General George Washington to discipline his mainly white troops. The Continental Congress initially authorized Washington to apply no more than 40 lashes, but in 1776, Washington sought and obtained authority from Congress to impose 100 lashes. Shortly before the battle of Yorktown, Washington sought authority to impose 500 lashes. Thomas Jefferson provided for "stripes" in a statute he drew for Virginia. In its early years, the United States did without large-scale penitentiaries.

When executed in public, corporal punishment provides a much better example than prison time. It deters crime effectively. Intense pain fills the offender with a desire to avoid pain in the future. The boredom of prison does not impart the same message. Physical punishment provides offenders with an immediate opportunity to change their behavior and join law-abiding society. Before incarcerated convicts can reform, they must first endure a clean version of hell that discourages their improvement and fails to impart the skills they will need when released.

Judicial corporal punishment is far less expensive and time-consuming than incarceration. Incarceration saddles taxpayers with expenses for food, clothing, shelter, medical care, security, personnel costs, building expenses and other burdens. America's 2.3 million inmates are essentially a huge mass of full-ride welfare recipients. Incarceration removes people from the productive economy, cages them, and prevents most of them from working productively or efficiently in the private sector. Prison industries are state businesses and usually only make products for use by the state. There are not nearly enough prison jobs to go around.

Flogging does not preclude incarceration. Like prison time, it can be held over the parolee's or probationer's head. But corporal punishment is faster and more flexible. Several doses of flogging might be administered in the time it takes to serve a one-year prison sentence. Some offenders will want to "get it over with" and plead guilty, accepting responsibility sooner.

Judicial corporal punishment will not break up families, marriages, communities and careers like incarceration does, nor will it increase welfare costs as much as mass incarceration.

Our society abhors the thought of flogging. Rarely portrayed as a valuable punishment, it is often confused with more arbitrary parental corporal punishment. But the more people learn about modern mass incarceration in the United States, the less they will object to judicial corporal punishment. Studies applicable to often-arbitrary and abusive parental corporal punishment do not apply to the rational use of judicial corporal punishment. We do not have scientific studies concerning judicial corporal punishment. All we have is history... and increasing knowledge of the social disaster caused by modern mass incarceration.
About this Author

For documented effectiveness of judicial corporal punishment, please look inside "Prison and Slavery - A Surprising Comparison," http://www.amazon.com/dp/1432753835. John Dewar Gleissner, Esq. graduated from Auburn University (B.A. with Honor, 1973) and Vanderbilt University School of Law (1977).