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Criminal Defence

I represent people accused of crimes though all stages of the criminal court process, from bail proceedings through to trial. I have experience dealing with a wide range of criminal offences, and in particular crimes related to domestic violence.

If you have been accused of a crime it is important to understand the process and understand your rights. It is imperative to consult with a lawyer at the earliest opportunity. 

I offer a full range of criminal defence services, from complete representation to more limited representation, such as consultations and confidential second opinions if you are concerned with the current conduct of your case.


The Criminal Court Process

 

Most criminal cases proceed as follows:

  1. The accused is arrested and/or detained and either given a Promise to Appear by the police, or brought before a justice. The accused may also be placed on an Undertaking that has several conditions (i.e. no contact with the complainant, no possession of illegal drugs, “no go” orders, etc.); 
  2. The accused appears in court for his/her first appearance and receives disclosure, or “particulars”, from the crown, which is a package of documents that contains evidence related to the charge, such as written statements and photographs; 
  3. The accused adjourns the case for 2-6 weeks in order to obtain legal advice, and/or to retain a lawyer; 
  4. The accused appears in court for the arraignment hearing and enters a plea of guilty or not guilty; 
  5. If the accused pleads guilty, he/she is sentenced by a judge, serves his/her sentence, and the case has ended; 
  6. In the alternative, if the accused pleads not guilty, he/she is given a trial date; 
  7. Depending on the circumstances and the complexity of the case, the trial takes place several months or even years after a not guilty plea, during which time the crown provides ongoing updates of evidence to the accused, and there may be pre-trial motions or a preliminary inquiry;
  8. As the trial date approaches, there may be one or more short court appearances about a month ahead of trial for the purposes of discussing the conduct of the trial, narrowing the issues at trial, and/or determining whether there could be a plea agreement;
  9. The accused person appears at his/her trial, where the crown presents evidence to the court in an attempt to prove the charge beyond a reasonable doubt. The accused person may also decide to present evidence to the court, but is not required to do so; 
  10. If, after hearing all of the evidence at trial, the court decides that the charge has not been proven beyond a reasonable doubt, the accused is acquitted and the case ends; 
  11. In the alternative, if the court decides that the charge has been proven beyond a reasonable doubt, the accused is convicted; 
  12. After the accused is convicted, the judge will pass sentence, the offender will serve his/her sentence, and the case will end. 

The summary above is a very simple outline of how a case may proceed through the court. There are many possible variations of this summary. For example, sometimes the accused has a long criminal record or a poor history of compliance with court orders, in which case the crown may apply to the court to have the accused detained in jail until trial. This additional step is called a bail hearing, and can happen at almost any stage of a criminal proceeding.

Another variation occurs when an accused person is charged with a very serious offence, such as aggravated assault or trafficking large amounts of cocaine. In these serious cases, the accused has the right to choose the mode of trial: trial by a Provincial Court Judge, a Supreme Court Justice, or a Supreme Court Justice sitting with a jury. If the accused elects either of the latter, he/she will also be entitled to a preliminary inquiry in advance of trial.

It is beyond the scope of this article to discuss all of the aspects of criminal procedure. Suffice to say that most accused persons find the process complicated and intimidating.

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The First Appearance

 

It is important to understand that in most cases, for all intents and purposes, not much happens at the first appearance. In the vast majority of cases, people simply attend court as ordered, pick up their disclosure, and adjourn the case for two or more weeks to seek legal advice. The first appearance happens in the criminal remand court, and sometimes the list can have a hundred or more names. The appearance is usually short. The accused is asked whether he/she understands the nature of the charges and how much time he/she needs to seek legal advice and to enter a plea.

 

At the first appearance, nobody is going to expect or force the accused to enter his/her plea. It is simply inadvisable for the accused to take a rash approach to such an important decision as his/her plea. There are some occasions when a plea is entered at the first appearance, but this is the exception rather than the rule.

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Guilty or Not Guilty?

 

The plea is the most important decision that an accused person must make after being charged with an offence, and should not be made lightly. 

 

To plead guilty is to admit that the offence has been committed and accept punishment through the sentencing process. The guilty plea must be voluntary and informed. In some circumstances, an early guilty plea can result in a reduced sentence. A guilty plea leads to the conclusion that the accused person is taking responsibility for the offence.

 

The choice to plead not guilty is not based solely on guilt or innocence. There may be a serious flaw in an otherwise strong case for the crown, such as a tainted statement, or evidence that has been gathered by the police in violation of a constitutional right. There may be a question as to whether a key crown witness is actually willing or able to testify. The accused may simply decide that he/she wishes to take his/her chances at trial, hoping that the crown may make a serious error during the presentation of the case. No matter what the reason, to plead not guilty to a criminal charge is a fundamental right of every person. No accused person must reveal their reason for a not guilty plea. 

 

An important principle of the criminal law is that an accused person is presumed innocent until proven guilty beyond a reasonable doubt.

 

The bottom line is that your plea is an important decision that should be made carefully with the assistance of a competent lawyer. The advice of a lawyer at this stage of the proceeding is of great value.

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The Sentencing Hearing

 

After an accused pleads guilty or is convicted of an offence after trial, he/she (now the offender) is sentenced. The simplest way to describe the purpose and procedure of a sentencing hearing is as follows. 

 

The role of both crown counsel and defence counsel at a sentencing hearing is to assist the court in determining the appropriate sentence for the offender in the circumstances. Defence counsel also has a duty to effectively represent the interests of his/her client, which generally means seeking as light of a sentence as possible for his/her client. A sentencing hearing can be either adversarial or cooperative. 

 

In an adversarial sentencing hearing (more commonly referred to as a “contested” sentencing hearing), crown and defence will argue about what the sentence should be. The crown will start first, presenting the facts of the case that support the crown’s argument or “position” on sentence. The defence will speak next, usually focusing on the good character of the offender, his/her family life and employment, and generally presenting facts that support a lighter sentence than the sentence sought by the crown. There will also usually be a chance for each side to present a reply argument.

 

In a cooperative sentencing hearing, the crown and defence have agreed in advance to recommend a specific sentence to the court. This is called a “joint submission” on sentence. It is important to note that the “plea bargain” does not exist in Canadian criminal law. Even if the crown and defence reach a plea agreement, the final decision on sentence belongs to the judge.

 

Once the judge has heard the arguments or “submissions” of both the crown and the defence, the judge will ask the offender if he/she has anything to say before sentence is passed. The accused will either accept or decline the offer to make a statement, and sentence is passed by the judge

 

The following sentences are available to the judge:

  • Absolute discharge (somewhat uncommon);
  • Conditional discharge (where appropriate, a chance for an offender to avoid a criminal record);
  • Probation (a time limited set of conditions that results in a criminal record);
  • Fine;
  • Restitution;
  • Conditional Sentence Order (a jail sentence served in the community, or “house arrest”);
  • Jail; or
  • a combination of two or more of the sentences listed (i.e. jail followed by probation).

 

An offender should always remember to provide his/her lawyer with evidence of good character. Letters from employers, family members and friends can have an impact on sentencing. A clear outline of an offender’s past, present circumstances, and future plans goes a long way to presenting the offender as a real person, not just another warm body in the courtroom. 

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Our Rights as Free Citizens 

 

As members of a free and democratic society, we all enjoy certain rights, within limits:

 

  • The right to think what and worship as we please;
  • The right to express ourselves through the media;
  • The right to assemble for peaceful purposes;
  • The right to associate with others;
  • The right to vote;
  • The right not to be deprived of life, liberty and the security of the person except in accordance with the principles of fundamental justice;
  • The right not to be arbitrarily detained or imprisoned;
  • The right to be informed of the reason for arrest or detention;
  • The right to retain and instruct counsel upon arrest or detention;
  • The right to a judicial bail hearing when detained by police;
  • The right to know the specific crime you have been charged with;
  • The right to be tried within a reasonable time;
  • The right to remain silent, and not be forced to testify against yourself;
  • The right to be presumed innocent until proven guilty;
  • The right to a fair trial;
  • The right not to be denied reasonable bail without just cause;
  • The right to be tried by a jury in certain cases;
  • The right to be tried only once for an offence;
  • The right not to be subjected to cruel and unusual punishment; and
  • The right to equal protection under the law.

 

It is a common misconception for people to think that “only the criminals have rights”. Although many of our rights and freedoms are defined in the context of a criminal prosecution, it is important to remember that “it is better that ten guilty persons escape punishment than one innocent person suffer”.

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Important Legislation

 

There are many pieces of legislation that help form the body of the criminal law, but primarily three: The Criminal Code, The Canadian Charter of Rights and Freedoms, and the Youth Criminal Justice Act.

 

The Criminal Code contains criminal offences and rules around criminal procedure. The Canadian Charter of Rights and Freedoms is similar to the Bill of Rights in the United States, in that it provides limits to the powers the government has to enact and prosecute crimes, such as freedom of speech and the right to a fair trial. The Youth Criminal Justice Act contains special procedural and substantive laws designed to provide extra protection for children.

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