Bytensky Shikhman Barristers
Criminal Lawyers Toronto

Pre-Charge Advice: Critical First Hours

The steps you take moments before you are charged have tremendous impact on your case in the long run. Whether you’re under investigation, facing arrest, or contacted by police – what you say (and don’t say) matters enormously.

If you are under investigation but not yet charged, we intervene early to protect your interests. Simultaneously, we prepare you for every outcome: what to expect, how to protect yourself, and what steps to take if charges do proceed. In many cases, early intervention prior to the criminal charge, can influence the outcome of your case.

If you are arrested exercise your right to speak with a criminal defence lawyer and remain silent. Under Section 10(b) of the Canadian Charter of Rights and Freedoms, you have the Constitutional right to speak with a lawyer immediately upon arrest or detention - and a corresponding right under Section 7 to remain silent until you do. This is not a suggestion. It is one of the most powerful protections you have, and police cannot penalize you for exercising it.

Do not try to explain yourself. Even seemingly innocent statements can be used against you. Even if you have nothing to hide. Even if officers suggest cooperation will help your situation. It won't.

The only words you should say are: "I am exercising my right to remain silent. I want to speak to my lawyer." Then call us immediately.

We will speak with you and the attending officer, provide clear instructions to you about next steps,  contact family members, prepare for bail and where necessary ensure that evidence is preserved. We deliver immediate criminal advice the moment you call.

We are available 24/7 for this reason. The right legal advice in the first hours shapes the parameters of any criminal case.

We handle every detail - from police interactions to bail hearings to pre-charge negotiations - long before you ever step foot in a courtroom.

Call us now. Day or night, we're ready.

Bail: Securing Your Release

Bail is more than what you’ve read in the news. If you or someone you love is in custody, hiring a criminal defence lawyer you trust is crucial. Our priority is always release, on favourable terms, at the first possible juncture. Whether you require a lawyer to argue an urgent bail hearing or negotiate your release with the police or the Crown, your freedom is our priority.

Preparing Your Bail Plan

A successful bail hearing requires more than just showing up in court. From the moment we're retained, we begin building a comprehensive bail plan tailored to your circumstances. This often means several steps taken behind the scenes, including; identifying suitable sureties, speaking with Crown Attorneys, and filing materials with the Court on your behalf.

Identifying Sureties:

A surety is an individual willing to supervise your release. A surety often pledges a sum of money to ensure compliance with conditions imposed by the Court. Our duty is to prepare your surety thoroughly, ensuring they understand their responsibilities and withstand cross-examination by the Crown. We also address practical concerns: where you'll live, how you'll support yourself, and what conditions you can realistically follow. The strength of your bail plan and preparation of your surety often determines whether you're released or remain in custody.

Pre-Hearing Negotiations:

Long before a bail hearing is even scheduled, negotiations take place behind the scenes and off the court record. At the outset of your arrest, the Police and Crown Attorneys work to prepare a bail package that includes the materials the Court will rely on to determine how to structure your release (or detention). The materials include the allegations, any reports the police prepared during investigation, and a criminal record (if you have one).

The Defence is then provided with the Crown’s position on bail and begins a series of negotiations to secure a ‘consent release:’ A release from custody with a pre-negotiated bail plan, agreed to by all parties, that negates the need for a full-fledged bail hearing.

What Happens at a Bail Hearing

At the bail hearing itself, the Crown Attorney outlines the allegations and seeks to justify their position on release. Your lawyer then presents your bail plan to the court and presents your sureties to testify if required.

At your bail hearing, the Court will consider whether the Crown or the Defence has successfully met test on bail to secure your release. The test can be summarized into three questions: Are you likely to attend court? Are you a danger to public safety? And is your detention necessary to maintain confidence in the administration of justice? It is crucial to address each of these concerns head-on, presenting compelling evidence and argument that demonstrates you pose no risk and should be released.

The Legal Test for Bail

Under Canadian law, there is a presumption in favour of release - meaning you should be granted bail unless the Crown can justify your continued detention. The burden is on the prosecution to show why you should remain in custody. However, for certain serious offences or if you're already on bail for another matter, that burden shifts and it is the defences obligation to demonstrate why release is appropriate.

We know how to navigate both scenarios, presenting the evidence and legal arguments necessary to secure your freedom.

We are Leading Voices on Bail Reform

Delays in the bail system can leave innocent people languishing in custody for weeks before they even get a hearing. Our partner, Sonya Shikhman, argued the precedent-setting case of R. v. Simonelli, which addressed unconstitutional delays in bail hearings. In that case, the court recognized that lengthy pre-bail detention violates an accused person's Charter rights and can result in charges being stayed or sentences reduced. Simonelli established important protections for individuals caught in a backlogged bail system, ensuring that unreasonable delays are scrutinized and remedied.

When the federal government introduced Bill C-48  - controversial bail reform legislation that makes bail harder to access, our partner, Boris Bytensky, testified before the Senate on behalf of the Criminal Lawyers' Association, representing nearly 2,000 criminal defence lawyers across Canada. His testimony highlighted the practical consequences of the legislation: increased bail hearings would strain an already overburdened court system and require additional resources for legal aid and courtrooms.

This is the level of advocacy and legal expertise we bring to every bail matter - not just fighting for your release but fighting to protect the constitutional rights of all accused persons.

When Every Hour Counts

Time in custody has devastating consequences: job loss, family disruption, and increased pressure to accept unfavourable conditions for release and even plea deals just to get out. That's why we move urgently. We are available 24/7 to begin preparing your bail immediately, often securing release within 24 to 48 hours of arrest. If you've been denied bail, we can bring a bail review before a Superior Court judge. Your freedom shouldn't wait. With us, it won't.

Trial and Trial Preparation

Our criminal defence lawyers have successfully tried hundreds of cases in Ontario’s trial courts. We recognize that stepping into the court room can be daunting, especially if you’ve never faced criminal charges before. From day one, we ensure you understand the process, know what to expect, and feel prepared. From cross-examination to final submissions, we deliver relentless advocacy to secure the best possible outcome.

Collecting and Preserving Critical Evidence

Strong defence work requires us to be proactive evidence gatherers, not just reviewers. We work closely with our clients to identify and secure evidence that supports their case. This includes carefully analyzing text messages, emails, phone records, and other communications that may provide crucial context or contradict the Crown's theory.

We also act swiftly to preserve evidence before it disappears. Time-sensitive materials like CCTV footage, security camera recordings, and dashcam videos are often deleted or overwritten within days or weeks. We immediately send preservation demands and retention letters to businesses, property owners, transit authorities, and other entities to ensure this footage is secured before it's lost forever. In many cases, this proactive approach uncovers evidence that becomes pivotal to achieving a favourable outcome.

Building Your Defence from the Ground Up

Trial preparation begins the moment we're retained - long before you ever set foot in a courtroom. We review all Crown disclosure: police reports, witness statements, video evidence, forensic analysis, and any other material the Crown intends to use against you. We identify weaknesses in their case, inconsistencies in witness accounts, and potential Charter violations that could result in evidence being excluded. This isn't passive review - we're actively building a defence strategy tailored to the specific facts and evidence in your case.

Pre-Trial Applications and Strategic Motions

In many cases, the most important battles happen before trial even begins. We bring pre-trial applications to exclude illegally obtained evidence, challenge the admissibility of statements, or argue that your Charter rights were violated during arrest, search, or interrogation. A successful Charter application can result in critical evidence being thrown out - sometimes leading to charges being stayed entirely. We also explore resolution discussions with the Crown, but only on terms that serve your best interests. If the offer isn't acceptable, we don't hesitate to proceed to trial.

What to Expect at Trial

A criminal trial unfolds in stages, and we prepare you for each one. The Crown presents their case first, calling witnesses and introducing evidence. This is where cross-examination becomes critical: we systematically challenge their witnesses, expose contradictions, and undermine the reliability of their testimony. You have the right to testify in your own defence, but you're never obligated to do so. We'll advise you on the strategic advantages and risks, ensuring you make an informed decision. If we call a defence, we advance witnesses, expert testimony, or other evidence that supports your innocence or raises reasonable doubt. Finally, both sides make closing submissions, and the judge or jury deliberates on a verdict.

The Standard is Reasonable Doubt - We Hold the Crown to It

In Canadian criminal law, the Crown must prove your guilt beyond a reasonable doubt. This is an extraordinarily high standard, and our job is to hold them to it. We challenge every piece of evidence, question every assumption, and force the prosecution to meet their burden. Reasonable doubt doesn't mean you have to prove your innocence -it means the Crown must prove your guilt so conclusively that no reasonable person could doubt it. If we can raise even a reasonable doubt about any essential element of the offence, you must be acquitted.

Courtroom Advocacy When It Matters Most

When the stakes are your freedom, reputation, and future, you need lawyers who are not only skilled but fearless. We've stood before judges and juries in cases ranging from impaired driving to homicide, and we bring that depth of experience to every trial. We know how to read a courtroom, adapt our strategy in real time, and deliver persuasive, compelling advocacy under pressure.

From the opening statement to the final word, we fight for you.