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Terms you should know
"Retain"
Section 10(b) of the Canadian Charter of Rights and Freedoms
says that "everyone has the right on arrest or detention to retain and instruct
counsel without delay and to be informed of that right."
A lawyer is retained once he agrees to act for a person, whether he
has received payment, a Legal Aid certificate or even no payment at all.
"On the record"
Once a lawyer appears in court and says he or she is counsel for the
accused person, the lawyer is "on the record." The lawyer is then obligated to appear
in court on behalf of the accused for preliminary inquiry or trial. The lawyer can
withdraw and be removed from the record ("get off the record") only with the court's
permission.
A lawyer cannot terminate the retainer except for good cause and
upon notice. In Ontario, failure to pay your lawyer is sufficient cause for withdrawal.
By contrast, the client can terminate the relationship with the
lawyer at will. Once fired (discharged), a defence lawyer no longer has a responsibility
or a right to represent the accused. Once fired, the lawyer must still seek the court's
permission to withdraw.
A lawyer must withdraw if his client insists he or she do something
unethical or illegal or if the client has acted dishonorably in the proceedings. A lawyer
must also withdraw if, for example, due to inexperience, he or she is not competent to
represent the client.
"Information"
The information is a sworn document that sets out the charge or charges
against the accused. Anyone may lay an information by attending before a justice of the
peace and describing the alleged criminal conduct. The informant must sign the information under oath.
"Indictment"
An indictment is a written accusation generally signed by Crown counsel
in the name of the Queen alleging that the accused committed an indictable offence. It
is unsworn. The indictment is the document used if the case progresses beyond the Ontario
Court of Justice (lower court or court of first instance) to trial in the Superior Court
of Justice.
"Proceedings by indictment"
Proceeding by way of indictment refers to the choice a prosecutor has
on a Crown option or hybrid offence, where the choice is between proceeding by way of
indictment or by way of summary conviction. It does not refer to the document known as
the indictment, which is prepared only if the case proceeds to the Superior Court of
Justice.
For an explanation of the distinction between proceedings by summary conviction and indictment, see: summary conviction or indictable?
"Count"
A count in an indictment or information is a charge, any number of
which may be included in a single information or indictment.
"Charge screening-form"
A charge screening-form is filled in by Crown counsel before or shortly
after the first court appearance of an accused. Generally it sets out the charges the
Crown will be proceeding on and often shows the penalty the Crown will seek on a guilty
plea or after a trial. The form shows how seriously the Crown views the charges.
The form is required in making application for Legal Aid. You may be
denied Legal Aid if the form shows that the Crown will not be seeking incarceration upon
conviction. Thus, for example, you are unlikely to receive Legal Aid if you are facing
your first charge of impaired driving as the form will likely indicate that the Crown
will seek only a fine if you are found guilty. However, you may still qualify for Legal
Aid if your livelihood depends on possession of a valid driver's licence.
The position set out on the form is based on preliminary information
and could change. For example, in an assault or threatening case, the Crown may indicate
that the charge is not amenable to resolution by a peace bond. A lawyer, however, may be
able to persuade the Crown otherwise and get the charge withdrawn.
The election (summary conviction or indictment) which is marked on the
charge-screening form for hybrid offences is
subject to change. When the prosecutor makes an election formally, it is done in court
and recorded on the information.
Disclaimer: The material on this site is not intended as legal advice. It merely conveys general information on legal issues commonly encountered by persons facing criminal charges in Canada. If you are charged with an offence, you should contact a criminal lawyer.
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