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Criminal Trial

How does a criminal trial work?

In the Greater Toronto Area, a Provincial Court trial will normally take place between eight and twelve months from the date of arrest. A Superior Court trial where the accused elects to have a preliminary inquiry will normally take as long as two years to commence when the accused is out of custody.

A constitutional remedy under s. 11(b) of the Charter may be available to an accused if the trial is not scheduled within a reasonable amount of time.

Weisberg Law – Real Trial Experience

Adam Weisberg conducts trials on a regular basis in both Provincial Court and Superior Court. In many of his cases, the Crown Attorney eventually decides to withdraw the charges altogether. This is because he has the experience and skill to gather appropriate facts to persuade the Crown Attorney that cases should not proceed to trial.

A criminal lawyer’s abilities are most apparent at trial. A good track record of winning trials is a sign of an experienced and effective criminal lawyer. It is recommended that people be skeptical of track records that show mostly guilty pleas resulting in discharges or charges being withdrawn. Discharges often reflect charges that are less serious. Guilty pleas are appropriate in some cases, but having a lawyer with trial experience, who is ready to go to trial, when necessary, is very important. A sharp trial lawyer will be able to look at a case and decide whether it is best fought at trial or whether a guilty plea is the most advisable course of action. Lawyers that mainly do guilty pleas may lack the trial experience to know which issues can be litigated successfully. Choosing a criminal lawyer is one of the most important decisions you will make in your life. Choose wisely.

Adam Weisberg has an enviable record of trial successes. Click here to see a selection of criminal cases successfully litigated by Mr. Weisberg. It is important to bear in mind that in addition to his many successful trial outcomes, Mr. Weisberg has also negotiated the withdrawal of literally hundreds of charges for his clients over the years.

Adam Weisberg prides himself on consistently obtaining excellent results for the firm clients. Every case is important.

Pre-trial motions

Before a trial begins, pre-trial motions are often brought to address issues which will have a significant bearing on the course of the trial.

Some examples of pre-trial motions that may be brought are:

  1. Application to exclude an accused’s statement to police on the basis it is involuntary or otherwise inadmissible;
  2. Application to exclude incriminating evidence as being too prejudicial and not probative;
  3. Application pursuant to s. 11(b) of the Charter to have the charges stayed because the case has involved unreasonable delay;
  4. Application pursuant to s. 8 and s. 9 of the Charter to exclude evidence gathered by the police through an illegal search or arbitrary detention;
  5. Application pursuant to s. 10(a) and s. 10(b) of the Charter to exclude statements or other evidence obtained in violation of the right to counsel;
  6. Application pursuant to s. 7 of the Charter for a stay of proceedings, for further disclosure, or to exclude evidence


Criminal lawyers will almost always advise their clients to exercise their right to remain silent if they are being questioned about a crime. When the right to silence is not exercised, any statement given may be very hurtful to the accused’s interests at trial. Very often accused people are understandably nervous when speaking to the police, and may unintentionally convey inaccuracies which will look like deliberate lies at trial. There are some situations where providing a statement may be advisable, however, an experienced defence lawyer ought to be consulted prior to even considering providing a statement.

Also, if an accused person gives a statement that is damaging to the defence case, it will take additional time and work for a criminal lawyer to attempt to have it excluded, leading to more costly legal fees.

Statements can potentially be excluded if the accused’s lawyer can demonstrate that the accused’s right to counsel was violated or if the Crown Attorney is unable to prove that the statement is voluntary. If any statement to police is to be admissible, the Crown Attorney must prove that it was made without threats or inducements. The Crown Attorney must prove voluntariness even if they only intend to use the statement for cross-examination.

Unreasonable delay – s. 11(b) of the Charter

The Charter provides a constitutional right to a trial without unreasonable delay. If that right is violated, the applicable remedy is a stay of proceedings. A stay of proceedings is essentially equivalent to an acquittal, in that once granted an accused will no longer have to face trial and possible conviction. The matter is over.

The delay involved must be caused by the Crown or the Courts. Any delay caused by the accused will not count as an unreasonable delay when a section 11(b) application is considered by a Court. Therefore, an accused cannot intentionally delay a criminal case and then successfully argue later on that his or her right to a trial without unreasonable delay has been violated. However, where the Crown or Courts are the true sources of unreasonable delay, a section 11(b) Charter application can be a viable remedy. The application will be made stronger and more compelling if the accused can demonstrate some specific form of actual prejudice caused by the delay.

Adam Weisberg has brought numerous successful 11(b) applications, some of which can be reviewed on the Successes page.

Arbitrary detention – s. 9 of the Charter

The Charter provides constitutional protection against arbitrary detention, which means that the police are not entitled to detain people arbitrarily. In other words, the police are not allowed to stop people randomly on the street and arrest or search them without lawful justification. The police are required to have a reasonable suspicion that somebody is involved in some specific illegal activity before they can detain a person. If incriminating evidence is uncovered in the course of arbitrary detention, the evidence may sometimes be excluded, resulting in an acquittal.

Search and Seizure – s. 8 of the Charter

The police regularly conduct searches with and without search warrants.
The police can obtain a search warrant by going to a Justice and explaining why they believe that a particular search will uncover evidence of illegal activity. Sometimes there are deficiencies in the search warrant or the process used to obtain it that can lead to any evidence obtained through the warrant being declared inadmissible.

When the police search a person or place without a warrant, the Crown must prove that the search was reasonable. In certain circumstances, such as following an arrest, the police are entitled to search people without a warrant. The extent to which the police can search a person without a warrant depends on the circumstances. When an accused is searched following an arrest, the initial arrest must itself be lawful. If the arrest is later found by a judge not to have been lawful, any evidence found in the search may be excluded. Some examples of cases where Adam Weisberg has had evidence excluded for breaches of s. 8 and s. 9 of the Charter can be found on the Successes page.

Life, liberty and security of the person – s. 7 of the Charter

Section 7 of the Charter provides an entitlement to all relevant disclosure. In some cases, the Crown may resist disclosure of certain documents for various reasons, and an application will need to be brought to obtain the disclosure.

Section 7 is also engaged when the police use excessive force against somebody. If the police harm somebody unnecessarily, and criminal charges are laid, the charges may be stayed using a Charter remedy under s. 7. For an example of such a case, see R. v. A.W. on the Successes page.

Sexual assault trials – 276 applications and Mills applications

It will often be necessary to bring special motions or applications in sexual assault trials. For example, if defence counsel wishes to cross-examine a complainant on prior sexual conduct, such an application will have to be brought successfully.

In some cases, it will be helpful to obtain counseling records and/or other third party records, which will also require that a special motion be brought.

The trial

When the Crown proceeds summarily, the accused has his or her trial in the Ontario Court of Justice (Provincial Court) before a judge alone. There are never juries in Provincial Court. When the Crown proceeds by indictment, the accused can elect one of the following three modes of trial:

  1. Trial in the Ontario Court of Justice (Provincial Court) before a Judge
  2. Trial in the Superior Court of Justice before a Judge and Jury
  3. Trial in the Superior Court of Justice before a Judge alone (without a jury)

At Weisberg Law, these options are thoroughly explained to our clients, and the tactical advantages to each are reviewed in detail.

Success at trial depends on extensive preparation and expert strategy. The goal at Weisberg Law is to make sure that clients go to trial with the confidence that everything possible has been done to help ensure a successful outcome.

Clients will be met periodically over the course of their case. As trial approaches, these meetings become more frequent and intense. Success requires proper preparation.

Adam Weisberg will step into trial ready to litigate every relevant legal issue and cross-examine all adverse witnesses.

Going to trial after being accused of a crime can be one of the most stressful experiences anybody has to go through. The only way to reduce that stress is to retain an experienced and effective criminal trial lawyer.

Contact Adam Weisberg at 416.605.4811