What are some of the important aspects of defending a criminal case?


Legal Fees

The following factors are considered when setting the amount of the fee charged for services performed:

(a) the estimated time to be spent on the client’s behalf and the nature of the service;

(b) the complexity of the issues and the client’s personal and monetary and penal exposure;

(c) an assessment of the envisaged result having regard to all the circumstances of your matter.

(d) in any case there are many unpredictable events which may take place to either shorten or lengthen the proceedings and an exhaustive listing of the various possibilities and developments which can arise during the defence process is not practical. If unforeseen developments occur which necessitate extra-ordinary steps and the consumption of significant time beyond what is normally required for a case I will discuss such matters with my client if there is to be any additional cost.

(e) depending on the nature of the case fees will be set either as a block fee for the whole case or in more complicated cases by way of an initial down payment and hourly charges. Legal Aid cases are billed to Legal Aid under the Legal Aid Tariff.

Disbursements

Disbursements are out of pocket expenses covering such items as investigation service, court filing services, process servers, messenger services, photocopies, the cost of transcripts of evidence and reproductions of video or audio tapes if any. It is usually difficult in the absence of Crown Disclosure to decide whether such assistance is necessary although there may be cases where immediate steps need to be taken to preserve evidence. Clients are fully advised if such expenses must be incurred.

Outside Services - Experts

Occasionally it is necessary to engage the services of another professional to provide expertise on an issue that may arise in the course of your matter or to conduct special investigations. Any occasioning of time and expense for the purposes of obtaining such assistance will be discussed with the client both in terms of its need and the cost of such services.

Reporting

I keep my clients informed of all developments in their case on their attendances at my office and by telephone and email. My client’s file is open for inspection at any time.

The Proceedings

There are several major stages in defending a criminal charge:

(a) Gathering and analyzing evidence and information about the case and receiving the client’s instructions;

(b) Assessment of disclosure of information received from the police and Crown Attorney and reviewing same with the client. The prosecution is required to disclose to my office all evidence which it intends to rely on and additionally any evidence in its possession which might prove helpful to the defence. The timing of disclosure depends on the complexity of the case and will be available in most cases on the first appearance at court or shortly thereafter. In the event that disclosure is not given in a timely fashion I have found that moving before the Court to stay the prosecution usually results in immediate delivery of the disclosure documentation to my office.

(c) Pre-trial attendance on a Judge of the Ontario Court and/or a Judge of the Ontario Court (Superior Division) for discussion of the matter and manner of proceeding;

(d) where applicable, preparation for and conduct of a preliminary hearing which is a proceeding at which the Crown prosecutor is required to call witnesses it relies in proof of the charges. The client is not required to give evidence or call any witnesses. At the conclusion of the preliminary hearing the client may or may not be committed to stand trial;

(e) Preparation for and conduct of the trial either by a Judge sitting without a jury or where applicable, a Judge sitting with a jury.

At each stage of the above process my clients are fully informed and advised as to my opinion regarding the best approach to the defence of the outstanding charge.

Adjournments

Clients would prefer to have me present at court for all court attendances and in all probability my clients will be required to appear on one or more occasions to adjourn the case prior to the matter being completed. On these occasions I will attempt to be at court with the client but in most cases the appearance may be only for the purposes of setting a further date for the matter to proceed on another date. The courts have devised a system whereby I may forward a letter to court with my new dates or I may contact the duty counsel at the court to advise what I want done with the case. This system is designed to save the cost to my client of having me appear at court and permits me to continue with other trial matters in respect of which I may be unavoidably engaged. I have no control in cases where I must be present in another court to continue on an ongoing trial matter which takes precedence over a case which is in court only to set a further date.

Where the client has appeared at court with a letter from my office or pursuant to arrangements I have made with duty counsel the client should make certain that my office is called prior to leaving the Court House to advise my office of the details of the next court appearance in order that I can diarize the case in my court calendar.

Another method of dealing with adjournments is to use what is known as a Designation of Counsel. This is a document which is signed by the client allowing me to appear at court for the client and to then keep the client advised of progress on the case until the trial date when the client must attend at court. I follow this procedure as much as possible in order to convenience my clients and have the case proceed expeditiously.

Early Resolution

At any stage of a case a resolution may be proposed by the office of the Crown Attorney. In such event I will fully inform and advise my clients and suggest the best manner in which to deal with such a development. It may also be that I may recommend some resolution of the matter short of a full hearing. My clients are fully advised and made knowledgeable with regard to all important aspects of the case in any decision made.

Confidentiality

Needless to say all communications between myself and clients with regard to the case are strictly confidential and can never be revealed unless the client waives solicitor/client privilege. Also unless otherwise advised by me the client’s best policy is not to discuss any aspect the case with anyone and to be careful as to associations while charges are outstanding and to report to me any approaches which may be made by anyone concerning the case.


Law Offices of David B. Cousins | 425 University Avenue, Suite 203, Toronto, Ontario, M5G 1T6
Telephone: (416) 977-8871 | Fax: (416) 599-8075
Email: davidcousins@bellnet.ca