Information for G20 Defendants: first appearances and beyond

The MDC's Summit Legal Support Project has gotten a lot of messages and calls from folks charged with criminal offences during the mobilizations against the G20 who are concerned about their first appearance. We hosted an information session for people facing criminal charges arising from the mobilizations against the G8/G20 on July 21st. Based on that session, we've collected some basic info on what to expect, at your first court date and beyond - click on 'read more' below.

We are also working with the 247 Support Committee on support for the August 23rd court date. The 247 Support Committee works to ensure that the political targeting of people for their involvement in the 2010 G20 People's Convergence end and that all charges against the hundreds of individuals facing prosecution be immediately dropped. The 247 Support Committee is part of the Toronto Community Solidarity Network that is organizing a broad political and legal defense in response to the Police violence of June 2010.

The immediate focus of the 247 Committee’s work is on providing support and logistics around the upcoming August 23rd court date. They are working to organize billeting, rides, media and general support (food, outreach, and resource referrals) for August 23rd. If you need billeting or help with transportation to court on August 23rd, or you or someone you know would like to access the support of the 247 Committee generally, please email them as soon as possible at 247.g20@gmail.com.

To hear about upcoming meetings of the 247 Committee or the Toronto Community Solidarity Network and future events and organizing, please join a low-traffic announcements listserv at
https://masses.tao.ca/lists/listinfo/community.mobilize

Legal Info for G20 Defendants

Disclaimer: the following is general information, NOT legal advice. For advice about your particular case or circumstances, please consult with a lawyer.

What’s going to happen on August 23rd?

First and foremost, your first appearance is NOT a trial. It is only the first of what will be a few or many ‘set dates’ aimed at setting a date for a trial (this can be a lengthy process!). It is also not an ‘arraignment’ – you will not have to plead guilty or innocent until trial.

So, what does happen? Set dates are an opportunity to have the Crown Attorney (the prosecutor) confirm the charges you are facing and how serious they are. Set dates are also an occasion to provide you with disclosure, which is all the relevant evidence that the Crown has in your case –including evidence in your favour. Disclosure allows you to know the case against you and is a constitutional right. Sometimes, disclosure is provided during the first set date, but often you have to wait longer or the first disclosure package you are given isn’t complete.

All this means that your first appearance won’t be very long. You will be called by name and with the assistance of a lawyer (see below), the above issues will be dealt with and you will pick another date to come back to court. This next appearance will be another ‘set date’ – either to await disclosure or to give you a chance to apply for Legal Aid and/or show the disclosure to your lawyer and discuss your options and next steps.

Occasionally, defendants are offered a more lenient sentence in exchange for a guilty plea by the Crown during the first set date. You DO NOT have to make a decision on the spot and you should always consult a lawyer about any offers by the Crown. Simply write down the offer and ask to come back to court on another day.

Note that set date court usually runs from 9am – 4pm, with lunch break from 1-2pm, but that August 23rd may run longer. Bring reading material and snacks (but remember that you will be searched upon entering the courthouse)! There is a duty to accommodate for disabilities and interpretation where required – you may want to contact duty counsel and/or the Crown’s office in advance.

Do I have to go to court in person?

We are anticipating that many people charged during the G20 will not have ‘retained’ a lawyer before their first appearance (made an agreement for representation with a lawyer in exchange for payment (or a Legal Aid certificate) – see below). You do not need your own lawyer for the first appearance, but if you are not represented by a lawyer, you MUST attend your first court appearance in person.

Duty Counsel lawyers (who are paid by Legal Aid and work at the) are available in all set date courts to assist unrepresented accused; you do not need to ask for their help in advance or have a legal aid certificate. Duty counsel can assist you at bail court, set dates and with guilty pleas, but they do not become ‘your’ lawyer – there is no on-going relationship.

If you have retained a lawyer or a lawyer has agreed to represent you pending retainer, whether you need to attend in person depends partly on the charge(s) you are facing, and you should speak to your lawyer about whether or not you need to attend court. Note that you cannot send anyone else on your behalf (e.g. a friend or relative).

The MDC is also working with volunteer lawyers to have additional defence lawyers and legal activists at the courthouse during the first G20 appearances to help ensure that everyone gets the assistance they need. Check our website for updates.

How can I apply for Legal Aid?

While you can apply for Legal Aid as soon as you charged, information about the seriousness of the charges you are facing is usually needed to get a decision. In practice, this means waiting until after your first appearance to apply because you will likely need the 'charge screening form' which is attached to your disclosure and sets out all your charges and the Crown's position on sentencing. To be eligible, your charges have to be sufficiently serious, which generally means that you need to be facing the possibility of a jail sentence if convicted. There are financial criteria as well; these are listed on the automated phone line when you call Legal Aid.

Note that Legal Aid often dissuades people from applying before their first appearance, but you can do it. Going in person (to a legal aid office at any courthouse) is often better than trying to do it over the phone. You may still be told that your application cannot be completed until after a first appearance.

If you qualify, you will be issued a legal aid certificate which allows the lawyer of your choice to be paid by Legal Aid Ontario [LAO] for a certain amount of work on your case. The certificate can be sent directly to your lawyer, if already have one. If not, it will be sent to you and you’ll need to locate a lawyer (see below). LAO may also offer you a contribution agreement where you pay part of the costs of the certificate back to legal aid. If you are denied legal aid, an appeal can be made in writing – your refusal letter will have details.

More information is available at http://www.legalaid.on.ca/en/getting/type_criminal.asp or call 416 979 1446 or 1 800 668 8258. Legal Aid Ontario has stated that out of province Canadian residents can apply in Ontario but that defendants who live outside of Canada are not eligible to apply.

When will my trial be?

A number of factors make it hard to predict how long you will have to wait for a trial: availability of disclosure, the complexity of a case, police officer availability and simply how busy the courts are. Waiting one to two years is not unusual. However, a trial within a reasonable time is a constitutional right and a very long delay can result in the charges being withdrawn.

Note that your lawyer will likely have to have a ‘pre-trial’ before a final trial is set. This is a meeting with your lawyer and the Crown (and in the case of a ‘judicial pre-trial’ a judge as well (a different judge than the one that will hear the trial)) to discuss disclosure issues, possible plea bargains, what the contentious issues will be at trial and how long the trial will be.

What are my bail conditions and (how) can I change them?

When you were arrested and later released you were probably given a document called a “recognizance” or “promise to appear” – these are your bail papers, even if the word ‘bail’ is not used. Your bail includes release conditions. Some common ones are non-association with particular people (especially co-accused), not to be in particular areas at particular times, reside at particular residence, etc. Any conditions against you are attached to your criminal charges, so if the charges are dropped, you are acquitted or convicted and sentenced, the conditions no longer apply.

Breaching your bail conditions is a criminal offence. A criminal record for breach of bail (and/or failing to attend court) is taken very seriously by the court and will affect your ability to get bail down the road if you are ever arrested again. Note that all your bail conditions have to be read together, not in isolation from each other – if you do not understand your conditions, they seem contradictory/inconsistent or you cannot follow them for good reasons (e.g. your job is in a location you cannot be in), you should speak to a lawyer as soon as possible.

If you need to change your bail conditions, the simpler method is a bail variation. This is a process involving negotiations between you (or your lawyer) and the Crown to change the terms of your bail conditions: you propose changes based on strong/compelling reasons, hopefully the Crown consents and you then present the changes in court to be finalized. Your surety/ies, if any, will need to attend court as well to sign the new bail papers. However, it can be difficult to get the Crown’s consent. Doing a bail variation without a lawyer can also be tricky, but the Duty Counsel office should be able to assist.

If a bail variation is not possible or successful, you can bring a bail review: a court hearing appealing your original bail conditions. This is very difficult to do on your own because you need to order transcripts of your bail hearing (e.g. pay the court reporter to transcribe the recording of everything said during your bail hearing) and file with them the court, along with affidavits and a written argument.

How can I find and work with a lawyer?

Finding a criminal defence lawyer (and you do want someone who specializes in criminal law!) who you can trust and are comfortable with can take some time. Ask friends and relatives for a referral or ask the MDC’s Summit Legal Support Project for our referral list.

If you don’t get a legal aid certificate, you will have to discuss costs with your lawyer – this arrangement is called a retainer. Some lawyers operate on a sliding scale based on your circumstances and in general fees can be negotiated and a payment plan worked out (e.g. instalments). If you can’t come to an agreement with a lawyer, they should offer you other referrals. Unfortunately, hiring a lawyer is often very expensive, although fundraising for G20 defendants is already under way.

Defence lawyers’ schedules make it difficult to return calls immediately but your lawyer should keep you informed along the way along about dates, options and next steps. Listen to your lawyer’s advice, ask for clarifications and discuss any disagreements but remember that final decisions about your case are yours to make. The relationship between lawyers and clients is confidential – what you tell them is privileged and cannot be disclosed to others.

How can I get support?

The MDC continues to work with activist and community organizations to help defendants self-organize, support each other, fundraise and share resources and knowledge. The 247 Committee was recently formed out of the Toronto Community Mobilization Network to organize a network for people facing criminal charges (subject to non-association conditions) and to offer logistical help. The 247 committee can help you with trauma support, property retrieval, and assist out of towners with places to stay and rides to the courthouse for set dates. They can also help you access the legal defence fund once its distribution polices and procedures are finalized. Finally, if you are interested in representing yourself in court, the committee and the MDC may try and set up a workshop with activists who have done so and can talk about possible political and legal strategies.

Let the committee know about what you need, or how you want to get involved: 247.g20@gmail.com. A meeting is planned for August 4th at OISE in Toronto.