The Basics of Criminal Law File | Criminal Law Disclosure
Hello. We are lawyers from eLaw Alliance.
My name is Herman January, I’m accompanied by Peter P and Janan Jarrah. We are all experienced in the basics of criminal law. So for today’s, uh, topic of discussion, we are thinking we would just, uh, provide some background about what happens on a criminal file and essentially the seating of a criminal file. So I’m just gonna open this up to the discussion.
So could you guys tell me a little bit about the background of what happens, uh, when a person is first initially charged with a criminal offense and what do we do as lawyers?
Um, so first thing is, uh, one of the first steps, uh, in a criminal process is to order disclosure. Disclosure is the, uh, package of information or evidence used against an accused person. Any victim statements, police reports, any of the evidence collected against a person is gonna be in their disclosure and they’re entitled to a copy of it. And you’re able to order it from the prosecutor’s office and they now I’ll provide it online in a digital format. So that would be one of the first steps is get a copy of your disclosure.
If you don’t have a lawyer, you gotta review it, but you have a lawyer, they will definitely review it for you.
Yeah, I, I think disclosure for criminal file is, uh, basically the core of, of the file is, is what the, um, first of all, in a criminal, uh, matter the charge against you, you think of it as an application by the, the crown. Uh, so they’re presenting their case. Um, they’re also held to a standard where they have to prove beyond a reason doubt that, uh, you were the one that committed the specific offense that you’re being charged with.
So disclosure is kind of the important piece of information because it kind of lays out what the charges are against you, what the information to substantiate that charge those charges, uh, against you. And there will be all sorts of information in there. Um, one of the, I think one of the first thing I do on a, on a review of a disclosure is look at the charges and then look at the, the summary by the police force.
Um, this kind of gives me a overview of what the alleged facts or alleged circumstances are, um, that make up the charge to what the, uh, police are alleged you have committed. Uh, and then from there, I kind of go into the detail of, um, what this officer said, what this alleged victim said, if there are any statements, uh, and whether there are any other supporting documents in there.
So this is kind of where as a criminal war practice, we, we start is, uh, going through that, uh, and obviously speaking to the clients, uh, about, um, about what they understand the charges to be and, um, what they understand the alleged facts to be that.
And, and yeah, just jump on that, that disclosure will also include, uh, things like pictures, any audio clips, videos, for example, in a theft, uh, you’ll usually see a store that they have their own video. So you, as the, uh, offender or the alleged offender, you are entitled to all that information. So they can’t hide that from you. They, can’t not disclose that to you. You are entitled to all that information and to see that, and with that disclosure that will usually, as lawyers will review it, that will usually give us an idea of how strong that case is against you, or if there is any potential weaknesses in the case against you.
And, and just jump on that with disclosure, we also usually order something called, uh, ECR that is an offer from the crown. Now that offer is something to settle the matter. And they’ll usually give you, uh, for example, in an assault, they might say you do certain conditions or you go jail time. Those kind of things, uh, will be provided to you from the crown in terms of what is reasonable in the circle instances in terms of the offer,
The Basics of Criminal Law File | Must know ERC information
The ECR stands for early case resolution offer. And Herman’s right. It’s one of the things you ask for right up front so that, you know, what your jeopardy is. Are you looking at jail time or not? Uh, so it’s definitely something that you want to like disclosure order, uh, early on in the process. Um, now guys, what about if you’ve got disclosure and you notice that there are things missing in the disclosure, let’s say you’re charged with, um, theft, they mentioned something about surveillance, but you don’t have it in your package of disclosure. What can you do?
What I usually do is once I I’ve gone over disclosure, at least a couple times, the I write down things that I, um, would be interested in getting more of or would be, uh, would want more information on, because it’s mentioned in the disclosure package already. Um, I guess at the end of the day, don’t expect the crime prosecutor is just gonna hand over every single item that they have or every single piece of information and that they have, uh, perhaps they, they are, um, by law having to do that.
But a lot of times they might not have it themselves because they’re relying on the police forces, uh, to get them that information. And, uh, crown prosecutors has a lot of, uh, uh, files on their hand as well. They may not have gotten to, uh, reviewing yours. Uh, so it’s what we usually do with due diligence is, is to write to the crown prosecutor requesting those additional disclosure.
So at least we alert them to a fact that we are looking for more information, because it’s already mentioned in here, uh, or it might be information that’s not mentioned, but you, you, you think reasonably, um, would be available to, um, to the crown prosecutor through the police. And, and it’s something that the crown prosecutor would, would look at and requested from the police force. Um, just kind of going back with the ECR is, is the ECR is really an opinion from the crime prosecutor of what they believe, uh, based on what they see in the disclosure as to be your sentence.
If you were to resolve and then they certainly, uh, at least I hope take into consideration some of the factors that you are, uh, when they’re making the ECR, that you’re gonna be offering a, a guilty plea to resolve the matter. Um, and the sentence that they’re asking for in that it may not necessarily be the same if you were to, uh, proceed with a trial and be found guilty of those charges. Um, because again, it’s not a resolution anymore and they would have to expense a little more resources, um, to prove the charges against you.
Yeah. And just to jump on that as part of the ECR, that’s simply an offer. You don’t have to accept that. And if it’s something that you don’t believe is acceptable, you could, uh, put your own offer towards a judge in terms of a guilty plea and give your own offer. The judge or the judge can decide what to agree with the crown or to agree with you. And of course, uh, in not accepting the offer, you can also go towards trial. Uh, but just to jump back for a second, we talked about, uh, disclosure and the offering and additional disclosure.
So once you have all of those things, what would be the next steps that you guys, I think in, uh, my case, uh, I definitely review disclosure multiple times like Peter and Herman. I know does too, uh, looking specifically for things related to potential charter breaches, uh, this might be something more complicated for a self-represented person to figure out, but something that, uh, a trained lawyer should to be able to spot. And the charter breaches are things that you will find out just by reviewing the disclosure.
The Basics of Criminal Law File | Police won’t really help your case
As an example, uh, disclosure will tell you, did the police have a, uh, proper authority to, uh, stop the individual who was arrested to talk to the individual, did the police acquire and collect the evidence in a legal way?
Police don’t have unfettered discretion to just, uh, arrest people and collect EV evidence any which way they want. There are specific rules that they too have to obey, and if they don’t or they make a mistake, a trained lawyer, uh, can through a viewing disclosure, see those errors and, uh, make attempts to argue that, um, if it’s a charter breach evidence should be thrown out as a result. So there are options, uh, you know, maybe you can elaborate a little bit more Herman on, uh, charter breaches, how to look for them in
Disclosure. Yeah, definitely. So some of the things you wanna look for is why the police might have stopped you. They have to have reason to stop you in most circumstances. Some of the other things you wanna look, look at is whether they searched you, whether they did that properly, whether they had the legal right to search you. And other things you might wanna look at is whether they gave you the right to counsel. Now, that’s very important here. It’s also insured within the charter.
So all of those kind of things are very important to determine, uh, the offense while, while that the offense might be proved. If there’s a charter breach, you could, uh, potentially get rid of some information, some evidence that the crown can then not use against you, uh, which can offense officially and the whole case. So charter breaches are very important in the review of any disclosure you,
Yeah, I agree. I mean, I think, uh, since the charter has come to force the Canadian charter rights and freedom, really, it then shines all the, uh, uh, citizens of Canadas their rights, um, under the law, so that, uh, uh, we live in a society where it’s not dictated by, I guess, so to speak the authorities, the police enforcement is over these or, uh, um, um, or anyone with, uh, with government authorities, so to speak, uh, over each person.
So charter breaches are very, uh, important or they’re significant the courts take them very seriously. Um, but also these are some of the things that are, that are very technical and, uh, may be very, um, difficult to identify. Um, if you are, um, doing this on your own. So, um, what we usually encourage people to do is that if you want to represent yourself in a criminal case, that’s fine, but at least try and have an opportunity to speak to a lawyer.
Uh, I mean, all of us are, have to upkeep the confidentiality rule anyways, by the law society. And we’re not gonna be speaking anyone else, including the pro prosecutors, if we don’t have express consent by you. So, um, we’re as assured that whatever you’re telling us, uh, whatever you’re showing us is not gonna be shared with anyone else unless you’re especially consenting to do so.
So, it is very important that at least you get a lawyer on board to kind of take a look at at least the disclosure with you, um, so that we can help and see if we can identify any of these issues in the Crown’s case that may be beneficial for you. And that kind could sway your, um, decision in terms of whether you want to resolve the matter or whether the resolution of the, uh, offer by the crown is, is reasonable, uh, or you, you know, taking the matter to court.
Yeah. Um, thanks for that guys. We’re definitely gonna be having more videos, talk a lot about these different topics, cuz there’s a lot to say, thanks for joining us for this one. And, uh, looking forward to the next one. Thank you.