If you are in Ottawa, Eastern Ontario or elsewhere in Canada, you should beware that people often think, incorrectly, that criminal findings of guilt before adulthood have no impact once a person becomes an adult. A young person’s record does not cease to exist just because they turn 18, and if they re-offend before the “non-disclosure period” has passed, their record can be used in court.
Most Ottawa residents know what Canada’s Charter of Rights of Freedoms is, but if you are ever placed under arrest, you might not know how it helps you. You are entitled to very important rights under the Charter; they are so important that if the police do not observe these rights, the courts can refuse to admit evidence obtained by the police, which could result in charges being dismissed by the court or dropped by the crown attorney.
If you are ever asking yourself, ‘what are my rights upon arrest?’ Here they are:
- Every person who is under arrest or detention has the right to be promptly informed of the reasons for the arrest.
- Every person who is under arrest or detention has the right to speak to a lawyer without delay. The police must inform the person of the right to speak to a lawyer and the police must also ensure that the person under arrest can access a lawyer.
- The police must advise the person under arrest of the right to speak to a lawyer and this must be done in a language that is clearly understood.
- The police must also advise the person under arrest that if they cannot afford a lawyer, a lawyer can be provided to speak to the person free of charge.
At the police station when you are being processed, issues can often arise when the police are giving you your right to consult a lawyer. For example, was an interpreter available if language was an issue? Were accommodations made if the legal advice was not understood? Was there adequate privacy for your call? Did you want to speak with a specific lawyer? Were you permitted to leave a message for the lawyer of your choice to call you at the police station? If any of these issues arose during your arrest, you want to ensure you discuss this with your lawyer.
Experienced criminal defence lawyers at Auger Hollingsworth can give you the advice you need to protect your legal rights. Contact a criminal defence lawyer at Auger Hollingsworth at 613-233-4529 or at [email protected]
Whether or not you are found guilty at a trial will depend on whether the crown attorney can prove a guilty act and a guilty mind.
In order to prove guilt, the crown must prove two parts for every criminal offence. The crown must prove an act (actus reus) was committed by you and that you had the criminal mental intention (mens rea) to commit the act. There is no guilty act without a guilty mind.
To prove the guilty act, the crown has to show:
a) an action (or omission of an action)
b) by a person with capacity
c) in a voluntary manner
d) which caused certain consequences.
If there is any reasonable doubt about whether these aspects of the alleged criminal act occurred, the court must find you not guilty. You do not need to testify and your lawyer does not have to prove that the alleged criminal act did not occur. You can remain totally silent because the burden of proof is on the crown.
Sometimes, no matter how good your criminal defence lawyer is, you end up with a finding of guilt or a plea of guilt and a sentencing hearing is required. Sentencing in Ottawa is a very important part of your case and should not be treated as an afterthought.
Where sentencing is likely or possible, our criminal defence lawyers will work with you to help build a strong case for a lenient sentence. A key component of the sentencing package is reference letters.
We work with our clients to devise a list of people who can provide personal letters of reference on your behalf. Typically these letters come from members of your community, religious institution, employer, neighbors, teachers or anyone else who is prepared to tell the court that you are a person of integrity who should be sentenced lightly. Note that we would never contact anyone for a reference letter without your express consent and instructions.
Generally, the letters of support set out the following:
-who the writer is in terms of occupation and family status
-a description of the writer’s connection to the accused person
-the fact that the writer is aware of the charges; and
-a description of a number of the accused person’s positive personal attributes (such as hard working, honest, a reliable worker, etc.).
The letter should include the writer’s contact information.
A package of supportive letters from people of good reputation in the community can go a long way to assisting your Ottawa criminal lawyers in making strong submissions on sentence.
If you have been charged with a serious criminal offence, you may be wondering what defences are available to you. We have compiled a short list of defences as an overview. Of course, not every defence is applicable to every case. Speak to an experienced criminal defence lawyer about whether you have a viable defence to your case.
Alibi: This is a defence that can be raised where the accused could not have committed the offence because he was not physically present at the location of the offence when it occurred. If the court concludes that the accused did not have the opportunity to commit the offence because he was elsewhere, the accused may be found not guilty.
If an accused maintains that he was elsewhere at the time of the offence, it is critical that this be discussed privately with an experienced criminal defence lawyer. This is important because it may be necessary to privately interview witnesses and secure evidence to confirm that the accused was at a location other than where the offence occurred. It is also important to discuss this privately with an experienced criminal defence lawyer because the lawyer will need to decide when and how to provide the necessary notice of the alibi to the crown. Although usually the defence does not have to disclose anything to the crown, the law does suggest that the crown and police should be given a reasonable opportunity to investigate any alibi defence. If this notice is not given, the alibi defence can be rejected by the court.
Provocation: This is a defence which is commonly misunderstood. Provocation can only be used to reduce the charge of murder to manslaughter. Provocation is not a defence to other circumstances. Generally, the accused must have committed the offence “in the heat of passion caused by sudden provocation”. It must be a wrongful act of such a nature that it would deprive an ordinary person of the ability to self control. The accused must have acted suddenly before there was any time to consider the actions or to cool his passion.
Self Defence: This is a defence that may be available to a person who committed the wrongful but did so to prevent harm to him ro herself, to others under their protection or to their property.
This defence is complicated and it is therefore critical that the accused discuss with an experienced criminal defence lawyer the circumstances of any possible self defence. Generally, there needs to be evidence of the “necessity” to have committed the act by using force and the force used needs to be “reasonable”.
Automatism: This is a defence where the accused is in a state of impaired consciousness with no voluntary control over his or her actions.
Intoxication: Intoxication may render an accused’s actions involuntary and therefore the accused may not have formed the mental intention to commit the offence. There are complicated issues surrounding whether or not the intoxication was voluntary or involuntary.
Last week, the legislation that eliminates two-for-one credit on Canadian sentences came into force. What this means is that people convicted of a criminal offence and then sentence do not receive additional credit for time they spent in jail before they were found guilty or plead guilty.
While this new law will appeal to those espousing a tough on crime agenda, there are some real concerns it raises.
First, the two-for-one credit took into account that the conditions at the detention centres where people are typically held before trial are much worse than at a federal or provincial penitentiary. Local detention centres are over-crowded, often in poor repair and lack programming. Spending 6 months in this type of holding tank is much, much worse than 6 months at a proper facility.
Second, there is a philosophical argument that is important for people who believe that the presumption of innocence is an important tenet of our judicial system. Pre-trial, pre-conviction custody entails detaining someone who has not been convicted of a crime. In our view, there needs to be recognition of this fact.
Third, it eliminates the ability of judges to treat each case individually. One of the virtues of Canada’s criminal justice system is its ability to tailor the outcome of a criminal prosecution to the facts of the case. Tying a judge’s hands is contrary to this important principle.
Fourth, lengthy pre-sentence custody is necessitated by a lack of government resources. People serve “dead time” because there are backlogs in the courts, not enough judges and court staff, etc. The removal of the 2-1 in sentencing takes a way one incentive for the Crown and the administration of justice to keep the process moving.
Fifth, there is really no evidence that this move will have any impact on reducing crime. This is legislation about appearing to be tough on crime. It is not about reducing crime.
Today is the 13th anniversary of my call to the Bar of Ontario.
During my 13 years I have been very fortunate to secure some great outcomes for great people who have had the misfortune of getting caught up in the criminal justice system. Some of the highlights of my career to date include:
- being counsel on a number of the leading decisions on extradition in Canada;
- acting as co-counsel for a man who had been convicted of murder on his second trial where a jury acquitted him;
- having the charges dropped for several clients on major tax evasion cases through Charter arguments and disclosure requests;
- having fraud charges dropped following preliminary inquiries for several business people in different cases;
- resolving countless domestic assault cases with no criminal records of conviction for my clients;
- acting as counsel for a key witness at the Gomery Inquiry;
- representing Karlheinz Schreiber before the Parliamentary Ethics Commitee and the Oliphant Inquiry; and
- acting for important political activists who are charged following protests and similar acts of alleged civil disobedience.
While these are just some highlights of the cases I have been fortunate enough to handle, this list serves to me as an important reminder of how lucky I am to be able to go to work every day to help people like you solve potentially life altering problems.
I am humbled and honoured to be able to enter my 14th year of practice as a criminal defence lawyer. I thank all my clients, past, present and future for allowing me to serve.
If you have been charged with a criminal charge, you will likely worry about the charges, your job, your family. But you are also probably worried about money. What is this going to cost me? If you are like most middle class people, you don’t qualify for legal aid. Plus, you were probably not planning for this expense. Here are a few issues you should be aware of:
- When you meet with the lawyer for the first time, you are unlikely to get a firm quote for a price. This is not because the lawyer is being wishy washy. It is simply because it is impossible to tell at the first meeting where the case will go. For example, we have handled hundreds of domestic assault cases. Some of them resolve favorably within a month of our retainer. Others involve a lengthy trial. Many end somewhere in between. One size cannot fit all. If the lawyer you meet quotes a flat fee at the first meeting, consider whether you are getting a cookie cutter defence as opposed to a defence that is tailored to your specific needs. Consider as well whether that lawyer is really prepared to go to trial in your case at that price.
- The retainer you give at the beginning of the case is a deposit. We put that money into our lawyer’s trust account where it is kept to be applied against your first bill. When we deplete the retainer, we will ask you to replenish it.
- When we have seen the disclosure (i.e. the Crown’s evidence) in your case, we will be in a better position to quote a fee for your case and will do so in most cases.
- As long as you retain us early in the process, we will always work with you on a payment plan. Putting a little bit into our trust account on a monthly basis is a good way to accumulate enough to finance a trial, if you need one.
- Some clients who are interviewing prospective lawyers are frustrated that they cannot know the price at the first meeting because it inhibits their ability to comparison shop. Consider whether it is the wisest choice to hire a criminal defence lawyer based on price. It would certainly be false economy to hire an inexperienced lawyer at a bargain price only to find that he or she is learning to practice criminal law on your case.
- In appropriate cases where cost is a serious issue, we can assign your case to a junior lawyer in our office who can handle most aspects of your files at a reduced rate. However, at our firm, the partners supervise all cases and will still play a role in your defence.
Given everything that is at stake, do not assume that you cannot afford a criminal lawyer or that it is not a good use of your money. In many cases, it will be the most important investment you will ever make in yourself.
If you have been released on bail, you may have bail conditions to obey while you are released. These conditions will be printed on the papers the police gave you when you were released from the police station or detention centre. You should study these conditions and have them on your person at all times.
To avoid being charged with a breach of your bail conditions (which is another criminal charge), you must obey the conditions. If you have sureties, it is their job to make sure you obey your conditions. They could lose their posted bail if you don’t obey your conditions.
So what happens if you have a legitimate reason why you cannot readily obey your conditions? For example, you may have a curfew that requires you to be home by 8 pm but your shift at work ends at 8:30. If you keep your condition, you will lose your job. There is a solution in most cases which is to get a bail variation.
Your criminal defence lawyer can try to get you a bail variation when you have a good reason to vary the bail. Often this can be obtained on the consent of the Crown, depending on the reason for the variation and the nature of the variation. Sometimes, a bail variation is contested. A contested variation will require argument before the court and a decision by a judge or a justice of the peace.
In either situation, the variation will certainly take days and may take a few weeks. As a result, it is very important that you do not leave it to the last minute. Your criminal lawyer needs some lead time to get a bail variation done. In the meantime, recall that breaching your conditions could result in additional charges and will almost certainly ensure that your criminal charges will be harder to resolve favorably.
For most people, getting charged with a criminal offence is a nightmare. All you want is for the charges to be dropped or withdrawn before a criminal trial is required. No lawyer can guarantee that you will escape from the charges without a criminal record. However, most lawyers will agree that there is certain conduct that will make it much more likely that you will be convicted. Here are three tips on what to avoid:
- Avoid being rude to the police when you are charged or while you are in the cell block. In many cases, if the Crown lawyer is considering dropping the charges against you, he or she will speak to the police officers on the case. The accused who was polite and subdued during the arrest and after will have a much easier time getting the police officer to let go.
- Avoid breaches of any conditions of your release. Negotiations with the Crown attorney go better when the accused person has been well-behaved during the period of release. If you are supposed to stay away from someone or somewhere, obey the condition. if you are not supposed to use alcohol, don’t. If there is a specific reason why you need to do something that your papers prevent you from doing, speak to your criminal defence lawyer, well in advance, to see if a variation of your bail conditions is possible.
- Don’t quit your job or drop out of school. If the terms of your release permit, keep your job or stay in school and try to do as well as possible. It is a helpful negotiating tool for your lawyer to tell the Crown that you have been gainfully occupied since the charges.
If you are charged and your lawyer is going to bat for you to get the charges dropped or reduced, avoiding these pitfalls will make your lawyer’s success much more likely.