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.
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.
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 an 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 A lawyer, however, may be able to persuade the Crown otherwise and get the charge withdrawn.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.
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?
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.
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.
A count in an indictment or information is a charge, any number of which may be included in a single information or indictment.