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Drinking and Boating

A conviction for impaired driving or over 80 is not reserved for circumstances involving motor vehicles. A person can receive a conviction for impaired driving or over 80 if he or she operates, or is in care and control of any boating vessel, aircraft or railway equipment. Given the vast number of lakes located not far from the Greater Toronto Area, it is not surprising that there is an increase in the number of cases involving drinking and boating during the summer months. With the upcoming Canada Day holiday, some of you may be on your way to a cottage, fishing, or simply enjoying some time on the water. It is important that you stay safe if you are going to be on the water and that you understand the implications of drinking and boating.

Drinking and Boating is the same as Drinking and Driving

It may come as a surprise to some of you that, if you are convicted of impaired operation of a boating vessel your Ontario driver’s licence will be suspended, just as if your driver’s licence would be suspended if you had been convicted of impaired operation of a motor vehicle.

For greater certainty, a vessel is not limited to boats. Drinking and boating can involve all forms of vessels including; a sea-doo, kayak, canoe, sailboat, and inflatable rafts. The specific definition of a vessel can be found in section 214 of the Criminal Code of Canada.

You should also be aware that a boat engine does need to be running in order to be convicted of drinking and boating. Impaired operation of a vessel can include circumstances where the boat is simply drifting and the engine is turned off.

Penalties for Drinking and Boating

If you are charged with impaired operation of a boating vessel, your Ontario driver’s licence will automatically be suspended for a period of 90 days. If you are convicted for impaired operation of a vessel, there is a mandatory minimum one-year driver’s licence suspension for a first offence pursuant to the Ontario Highway Traffic Act. For a first conviction involving drinking and boating, there is also a mandatory minimum $1,000 fine pursuant to the Criminal Code.

A conviction relating to drinking and boating will also require that you install an Ignition Interlock device in your motor vehicle, or you must wait the appropriate period of time (2 years) before you can drive without an interlock device. You will also have to take the Back on Track course which costs more than $600. When you are eligible to have your driver’s licence reinstated, you will be required to pay $150 administrative fee. You should also expect your insurance costs to be double or triple what they were prior to you being charged with drinking and boating.

What if I’m in the Warning Range 0.05-0.08 Blood/Alcohol Concentration?

The first time you are caught drinking and boating and are in the warning range, your driver’s licence will be suspended for 3 days and you will have to pay the $150 administrative fee in order to get your driver’s licence reinstated. A second reading in the warning range will result in an automatic 7-day licence suspension and you will be required to complete the Back on Track course. After 3 positive readings in the warning range, your licence will be suspended for 30 days and you will have a 6-month Interlock condition on your licence. For more information on the penalties for positive readings in the warning range, see the Ministry of Transportation website at;

http://www.mto.gov.on.ca/english/safety/impaired/fact-sheet.shtml#adls

 Ontario Liquor Licence Act

Section 31(2) of the Ontario Liquor Licence Act states;

No person shall have or consume liquor in any place other than;

a)      a residence

b)      premises in respect of which a licence or permit is issued, or

c)       a private place as defined in the regulations

A recreational boat is considered a private place only when it is anchored or secured to a dock or land and it is equipped with permanent sleeping accommodations and cooking and sanitary facilities. When transporting any alcohol on a boat, it must be stowed or sealed in a closed container.

Contact Me

The potential penalties for drinking and boating can be significant. Contact me today if you have been charged with impaired operation of a vessel.

You can also read about the implications of a conviction for impaired driving.

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Extra Judicial Sanctions: Diversion for Youth

What Is Diversion?

In some circumstances, diversion may be available for individuals who have been charged with minor criminal offences for the first time. Diversion is a way of dealing with criminal charges where the accused person does not end up with a criminal conviction. Although not limited to the following options, diversion usually involves the accused person completing;

  1. Community Service Work
  2. An Anger Management or Substance Abuse Program, or
  3. A Donation to a Recognized Charity

Once the accused person has successfully completed the diversion, he or she then returns to court where the charge is withdrawn at the request of the Crown Attorney.

Diversion is also available to anyone under the age of 18 who has been charged with a criminal offence. Diversion for youth is commonly referred to as Extra Judicial Sanctions, or simply EJS.

Extra Judicial Sanctions

Extra judicial sanctions falls within the larger section referred to as extra judicial measures under the Youth Criminal Justice Act. Extra judicial sanctions attempts to hold a youth accountable and responsible for his or her criminal behaviour and to prevent future criminal acts. Community service work is often involved with youth completing extrajudicial sanctions.

Can I Get Extra Judicial Sanctions?

Pursuant to section 10(2)(b) of the Youth Criminal Justice Act;

An Extrajudicial sanction may be used only if;

The person who is considering whether to use extrajudicial sanction is satisfied that it would be appropriate, having regard to the needs of the young person and the interests of society.

Generally, extra judicial sanctions are offered by the Crown Attorney when the young person is charged with a relatively minor criminal offence and he or she is a first-time offender. Even in circumstances where the Crown Attorney does not initially offer extra judicial sanctions, a criminal defence lawyer may be able to negotiate with the Crown Attorney that the charges against the young person be resolved through extra judicial sanctions.

Some examples of charges were extra judicial sanctions may be offered by the Crown Attorney include;

  • Theft Under $5,000
  • Mischief
  • Possession of Marijuana
  • Uttering a Threat
  • Assault
  • Possession of a Weapon / Carrying a Concealed Weapon

How Does Extra Judicial Sanctions Work?

If a youth is offered an opportunity to complete extra judicial sanctions, the young person must accept responsibility for his or her actions that form the basis for the criminal charges. If a youth denies any involvement in the commission of the criminal offences being alleged, then he or she will not be permitted to complete the extra judicial sanctions.

When a youth accepts responsibility and agrees to complete extra judicial sanctions, his or her case will be adjourned for about 3 months so that he or she will have an opportunity to complete the extra judicial sanctions. The young person will then meet with a youth probation officer to determine what extra judicial sanctions he or she will have to complete.

Section 4(d) of the Youth Criminal Justice Act allows a youth to receive extra judicial sanctions more than once, and it even permits a youth to receive extra judicial sanctions if he or she already has a youth criminal record. However, a Crown Attorney may not offer extra judicial sanctions where the young person commits a similar or worse criminal offence after receiving extra judicial sanctions on a recent prior occasion. A Crown Attorney also may not offer extra judicial sanctions where the criminal offence alleged involves serious acts of violence.

If I Complete Extra Judicial Sanctions, Will I Have A Youth Criminal Record?

No. Any youth who successfully completes extra judicial sanctions will not end up with a youth criminal record. Once a youth has successfully completed the extra judicial sanctions, he or she will return to court where the charges will be withdrawn. Follow the link if you would like to read more about Youth Criminal Records.

Contact Me

If you, or your son or daughter, have been charged with a criminal offence, contact me today.

You can also read more about Youth Offenders and the Youth Criminal Justice Act.

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Defending Assault Charges

Criminal assault charges are taken very seriously by our courts and can result in result in a jail sentence in many circumstances. A conviction for assault can also have a serious impact on a person’s future. The penalty you can receive and the impact an assault conviction can have on your future are only two reasons why defending assault charges is not something you should consider doing yourself. If you have been charged with assault, there may be one or more defences available to you.  A criminal defence lawyer will be the best position to provide you with the legal advice you need and to assist you in defending assault charges.

Types of Assault Charges

There are many types of assault charges, and you may be surprised to learn that the definition of assault under the Criminal Code of Canada is very broad. The least serious type of assault a person can be charged with is simple assault. This form of assault does not require that a person sustain any physical injuries. An assault can be simple as the intentional application of force without consent, or even a threat or an attempt to apply force.

The most serious type of assault is aggravated assault. Aggravated assault is strictly an indictable offence and has a maximum penalty of 14 years in jail. Aggravated assault occurs when a person wounds, maims, disfigures or endangers the life of another person as a result of assaulting that person. To be found guilty of aggravated assault, the Crown Attorney does not need to prove that you specifically intended to cause the kind of injuries referred to above.

Other types of assault include; assault with a weapon, assault causing bodily harm, assaulting a peace officer, assaulting a police officer with a weapon or causing bodily harm and aggravated assault of a police officer. Most charges involving assault of a police officer result from a person resisting arrest.

There are also sexually-based assault offences which include; sexual assault, sexual assault with a weapon, sexual assault causing bodily harm, and aggravated sexual assault. Defending sexual assault charges will be dealt with in another article.

Defending Assault Charges

Consent

Depending upon the circumstances, consent may be a defence available when defending assault charges. The burden is on the Crown Attorney to prove beyond a reasonable doubt that the alleged victim did not consent to the application of force. The Crown Attorney must prove that the application of force was more than simply the result of carelessness or a reflexive action on the part of the accused person.

Consent to the application of force can be either implied or expressed. For example, consent to the application of force is implied when a person is playing hockey. However, consent cannot be given with respect to consensual fist fights that result in serious or non-trivial harm.

Mistaken Belief

Mistaken belief can also be a defence to an assault charge. For this defence to be considered, the accused person must produce some evidence that there was an honest but mistaken belief that consent was given. It will not be enough for an accused person to simply say “I didn’t know the person did not want to be touched”. An accused person must be able to provide some evidence that would support he or she was under an honest but mistaken belief that consent was given.

Self-Defence

Self-defence is common defence used when defending assault charges. Section 34 of the Criminal Code provides that where a person is unlawfully assaulted without having been provoked, he or she is justified in using force to defend him or herself. The force used must be no more than necessary to defend oneself. Section 35 of the Criminal Code creates a defence where the person relying upon self-defence was the aggressor or provoked an assault. Subsequent sections of the Criminal Code deal with other forms of self-defence that may be used to defend assault charges in some circumstances.

Although not necessarily a defence, the issue of identity can be a factor in some cases of assault. The Crown Attorney must prove beyond a reasonable doubt that the person charged with assault is person who actually committed the assault. Identity will often be an issue where the alleged victim has never met the accused person before.

Pleading to a Lesser Offence

There are some cases where it is clear that there is (1) a factual basis for the assault charges and (2) the Crown Attorney can quite easily prove its case beyond a reasonable doubt. In these circumstances, a competent lawyer may be able to negotiate a guilty plea to a lesser offence. For example, where a person is charged with aggravated assault, a plea to assault causing bodily harm may be negotiated with the Crown Attorney.

Contact

Any charge of assault is a serious offence and a conviction can prevent you from travelling to the United States or obtaining employment in certain circumstances. Contact me today if you have been charged with assault.

For more information about the various types of assault, see my Areas of Practice.

You can also read FAQs on assault.

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Law-Abiding Citizen Criteria for Criminal Record Suspensions

Criminal Record Suspensions

Has the Government gone too far in responding to public concerns about criminal record suspensions? It would appear so. You may be surprised to know exactly what can be relied upon by the Parole Board of Canada when determining whether you should be granted or denied a criminal record suspension.

One of the reasons for replacing pardons with criminal record suspensions was in response to public concerns raised about what individuals should be eligible to have their criminal record no longer accessible through the Canadian Police Information Centre. More specifically, concerns were raised that nearly anyone with a criminal record could receive a pardon, including individuals who had received convictions for sexually-based crimes related to children. While I don’t disagree that there should be some form of eligibility criteria that must be met before a person can receive a criminal record suspension, it would appear the pendulum has swung too far the other way.

First, let’s begin by briefly reviewing the eligibility criteria and the process involved in applying for a criminal record suspension.

Eligibility for a Criminal Record Suspension

There are two types of criminal offences in Canada, summary offences and indictable offences. If you were convicted of a summary offence, then you cannot apply for a criminal record suspension until 5 years have passed from the date your sentence ended. If you are convicted of an indictable offence, you must 10 years from the date your sentence ended.

If you have been convicted of 3 indictable offences with each having a prison sentence of 2 years or more, then you are not eligible to apply for a criminal record suspension. Similarly, if you have been convicted of a sexually-based offence involving a child and you do not fall within one of the few exceptions, then you are not eligible to apply for a criminal record suspension.

Applying for a Criminal Record Suspension

An application for a criminal record suspension is made to the Parole Board of Canada. An application for a criminal record suspension costs more than $600 and can take several months and even up to a year to process. There are several steps that you need to complete before applying for a criminal record suspension, including obtaining a criminal record check. For a complete list of steps involved in applying for a criminal record suspension, contact me or watch for my article on applying for a criminal record suspension.

Law-Abiding Citizen Criteria

In addition to having to wait either 5 years or 10 years before being eligible to apply for a criminal record suspension, the onus is now on the applicant to prove he/she is a person of good conduct and a law-abiding citizen.

The Parole Board of Canada does not define what constitutes a person of good conduct, only that it is behaviour consistent with and demonstrating a law-abiding lifestyle. The Parole Board of Canada also does not define what constitutes behaviour consistent with a law-abiding citizen, however the Board’s Policy Manuel does list information that it may consider when determining whether a person has demonstrated he/she is a law-abiding citizen.

Taking into account that we are dealing with criminal record suspensions, it would only seem reasonable to conclude that a law-abiding citizen is someone who does not receive any further criminal convictions for a sustained period of time. Unfortunately, this is not the case. You may be surprised to know that the Parole Board considers much more when assessing whether a person has demonstrated they are a law-abiding citizen.

What information does the Parole Board of Canada consider when Assessing Law-Abiding Behaviour?

When determining whether a person should be granted a criminal record suspension, the Parole Board of Canada may consider information from a several sources. Specifically some of the information the Board will consider includes;

  1. Non-law abiding behaviour that did not result in a charge.
  2. Non-law abiding behaviour that resulted in a charge being withdrawn, stayed, or dismissed.
  3. Non-law abiding behaviour that resulted in a peace bond, diversion, or a conditional or absolute discharge.

Yes, you are reading that correctly. The Parole Board of Canada can consider information relating to events where you were never charged with an offence. The Board may also consider information relating to events where you were charged with an offence but you were never convicted.

To use this type of information to assess whether someone is a law-abiding citizen would seem to infringe upon section 11(d) of the Canadian Charter of Rights and Freedoms that every person has a right to be presumed innocent until proven guilty. Whether the use of this information is an infringement on the right to be presumed innocent until proven guilty does not seem to matter much to the Parole Board of Canada. Located in the Policy Manuel of the Parole Board of Canada is paragraph 13 under section 14 Clemency and Pardons, it states;

In its assessment of good conduct, the Board is not subject to the same standards as a criminal court. The presumption of innocence and the relating rights are not applicable in the context of a pardon or a record suspension application.

The information the Parole Board of Canada may consider is also not limited to just criminal offences. The Board can also consider provincial offences, including traffic offences. Yes, the possibility does exist that you could be denied a criminal record suspension because you were convicted of traffic offences.

As a criminal defence lawyer and a member of the public, I share the concern that there must be some process for determining whether a person is eligible for a criminal record suspension. However, a person should not be prevented from having an opportunity to move on with their life because of unsubstantiated allegations or because of traffic offences. It certainly would appear to be unfair to infer that a person is not a law-abiding citizen based on completely unsubstantiated allegations.

Contact

Contact me today if you wish to apply for a criminal record suspension or you have been refused a criminal record suspension.

You can also read my previous article on criminal record suspensions.

Here is a link to the Parole Board of Canada’s webpage for criminal record suspensions.

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Lawyer Trust Accounts

The Toronto Star recently published a set of articles on their investigation with respect to lawyers who misappropriated client trust funds. An issue raised in these articles is whether the Law Society of Upper Canada should be reporting to the police those lawyers who are stealing client trust funds. Any time there are allegations of lawyers stealing or misappropriating client money, these allegations must be taken seriously. Public confidence in lawyers is essential to the success of the legal profession.

I do not propose to address what role the Law Society should have regarding reporting criminal conduct of lawyers to the police. Rather, the purpose of this article is to help the public understand what a lawyer trust account is, and the process involved from when a lawyer receives client money in trust to when that money leaves the trust account.

What is a Trust Account?

A trust account is a bank account a lawyer or a law firm has which is separate from any general account held by that lawyer or law firm. A trust account permits lawyers or law firms to deposit client money into a bank account. Any money deposited into a trust account belongs strictly to the client, not the lawyer. The money is simply held in trust by the lawyer or law firm for the client.

Lawyers and law firms are not permitted to collect any interest that is generated from a trust account. Any interest that is generated from a trust account is transferred to the Law Foundation of Ontario where it is used for purposes such as funding Legal Aid and to help compensate individuals who have been the victims of fraudulent conduct by other lawyers.

Just as lawyers cannot earn any interest generated from any trust account, lawyers and law firms cannot used any client money held in trust to cover any costs incurred from having a trust account, such as monthly bank fees. Any monthly bank fees or other expenses resulting from having a trust account must be paid from the lawyer’s general account.

Billing Clients Who Have Money in Trust

Any time a lawyer receives money from a client for work that has not been completed, that money must be deposited in a trust fund. When a lawyer has completed all or a percentage of work on a particular file, the lawyer can then send an account for the work completed. Once the lawyer has sent a statement of account to the client, it is only then that the lawyer can transfer that money from the trust account to the law firm’s general account.

Bookkeeping

Every lawyer or law firm must account for every single cent that is deposited into a trust account. Having a trust account requires that lawyers and law firms maintain a trust receipts journal, a trust disbursements journal, a client trust ledger and a monthly trust comparison.

A trust receipts journal is a record of all client money received in trust by a lawyer or law firm. A trust receipts journal documents the date the funds were received, the method by which funds were received, the person who provided the funds, the amount received, and the reason funds were received into the trust account. A trust disbursements journal is a record of all payments made on behalf of clients and it documents similar information to the trust receipts journal.

A client trust ledger is a record of the amount of money a lawyer holds in trust for each client. Most lawyers have a mixed trust account, which means all client money held in trust is deposited into a single bank account. The client trust ledger will also show when money was withdrawn from the trust account and why it was withdrawn.

Every month each lawyer or law firm is required to complete a monthly trust comparison. The purpose of the monthly trust comparison is to ensure a lawyer’s accounting records are consistent with the lawyer’s trust bank account records. Accounting errors can occur at both ends, either by the bank or by the lawyer or law firm. The monthly trust comparison allows a lawyer or a law firm to quickly identify and correct any accounting errors.

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As a lawyer, I practice criminal law in Toronto and the surrounding areas. Contact me today and arrange a free consultation.

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Threatening Criminal Charges is Extortion

What is Extortion?

Extortion, commonly referred to as blackmail, is a criminal offence under section 346 of the Criminal Code of Canada. While extortion is a serious criminal offence, it is not one of the more common offences that you will see in our criminal courts. This may help to explain why there is not as much information about extortion available online as there is with respect to other criminal offences such as impaired driving, assault, sexual assault, and drug related offences.

To understand exactly what an act of extortion involves, it is easier to break it down into all the elements of the offence. Extortion occurs when

  1. One person induces or attempts to induce another person to do anything or cause anything to be done.
  2. The person intended to obtain anything or cause anything to be done.
  3. The person uses threats, accusations, menaces or violence to induce the other person to do anything or cause anything to be done.
  4. The person had no reasonable justification or excuse for inducing another person to do anything or cause anything to be done.

Our courts have held that the term “anything” should have a wide and unrestrictive application, and has interpreted anything to include extorting sexual favours, R. v. Davis [1999] 3 S.C.R. 759.

The threat itself does not need to be anything illegal. A threat can include disclosing information to a third party or, as discussed below, can include threatening to commence criminal proceedings against someone.

The person who is threatened does not need to be same person who is expected to do anything. A person can threaten another person to cause a third person do anything or cause anything to be done.

The person committing the extortion does not need to carry out the threat to be guilty of extortion. Similarly, the person who is threatened does need not to carry out the perpetrator’s demands for the perpetrator to be guilty of extortion.

Section 346 of the Criminal Code does not define what is a reasonable justification or excuse. However, our courts have previously held that a reasonable justification or excuse is determined based upon the entire course of conduct by the person making the demand for money, property or anything else.

Threatening Criminal Charges is Extortion

In most circumstances criminal charges for extortion arise from a situation where one person is knowingly trying to blackmail another person. The goal is usually to receive money that he or she would not otherwise be entitled to. However, this does not mean that you cannot be charged with extortion if you demand for money, property or anything else that you are legally entitled to and that another person is required to provide you.

It is the nature of the threat that will often determine whether charges of extortion are laid by the police. For example, section 346(2) excludes threats to begin civil proceedings, and therefore you are perfectly entitled to threaten to sue someone if they do not repay a debt they owe you.

Conversely, you are not entitled to threaten to commence criminal proceedings against another person. There are some people who may think that threatening to call the police on another person who will not repay a debt or return personal property can be a quick way to get their money or property back. Even in circumstances where the threat is innocent enough and the person never intends to follow through with it, threatening criminal proceedings still meets all the elements required for extortion. By threatening criminal proceedings you are (1) inducing or attempting to induce a person to do anything, (2) you are intending something to be done, (3) it is a threat, and (4) you have no reasonable justification or excuse. Again, it does not matter whether you are legally entitled to the money, property or anything else owed to you, you cannot threaten to commence criminal proceedings as a way to obtain what you want.

Contact

Extortion is a very serious criminal offence. Contact me today if you have been charged with extortion.

Read more about extortion.

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Lying to the Police or the Court

What can happen if I’m caught Lying to the Police or the Court?

It is never a good idea to lie to the police or the Court. People in general do not appreciate being lied to, and the police and Judges are no exception. If you are caught lying to the police or the Court, do not expect any sympathy, even if you are the victim of a crime.

Misleading or lying to the police or the Court are very serious acts that could result in a number of criminal charges against you. The criminal offences that you could be charged with can be found in the part of the Criminal Code of Canada dealing with Misleading Justice.

What Criminal Offences can I be charged with?

Perjury – Perjury occurs when a person makes a false statement under oath or solemn affirmation, or makes a false statement by affidavit, solemn declaration or deposition. The person must know that the statement they make is false and they must intend to mislead.

You cannot be convicted if you made a false statement but you reasonably believed the statement to be true at the time you made it.

The false statement does not be made in court; making a false statement under oath to the police will constitute perjury.

Making a False Statement – Making a false statement occurs when a person, who is not authorized or required by law to make a statement, makes such a statement by affidavit, solemn declaration or deposition, knowing that the statement is false.

This section is similar perjury and creates a criminal offence for a person who makes a false statement under oath when they were not required or authorized to make a statement.

Unlike perjury, making a false statement does not specifically require that the Crown Attorney prove that a person intended to mislead, it is only necessary that the person knew the statement was false.

Witness Giving Contradictory Evidence – A witness gives contradictory evidence when he or she gives evidence at a judicial proceeding and then gives contradictory evidence at a judicial proceeding. The Crown Attorney must prove that the person giving contradictory evidence intended to mislead the Court. However, the Crown Attorney does not need to prove which of the contradictory evidence is false.

Fabricating Evidence – Fabricating evidence occurs when a person, who intends to mislead, fabricates anything which is intended to be used in a judicial proceeding. While this section of the Criminal Code does not define the term “anything”, presumably it can be interpreted as meaning anything that may be introduced as evidence in a judicial proceeding.

Obstructing Justice – Obstructing justice occurs when a person wilfully attempts to obstruct, pervert or defeat the course of justice. The term “course of justice” includes both existing and proposed judicial proceedings, as well as matters that are at the investigatory stage.

Public Mischief – Public mischief occurs when a person causes a police officer to begin or to continue an investigation with the intention to mislead the police officer. A person can mislead the police officer by (1) falsely accusing another person of committing a criminal offence, (2) causing suspicion to be diverted from that person or causing another person to be suspected of having committed the criminal offence (3) reporting that an offence has been committed when no offence has actually been committed, (4) causing the officer to believe a person has died when that person has not died.

A person can also be convicted of attempting to commit public mischief. The person can be convicted even where the officer did not believe the person and did not commence an investigation or was not misled.

Punishment

Crimes involving misleading justice are taken very seriously and can attract jail sentences.  For example, it is not uncommon for a sentence for perjury to range from 9 months to 2 years. In cases involving public mischief where individuals have made false allegations of criminal offence, our courts have imposed penalties ranging from a fine to a jail sentence.

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Lying to the police or lying to the Court can result in very serious criminal charges that carry significant penalties. Contact me immediately if you have be charged with any of the offences listed above.

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Representing Guilty Clients

Representing Guilty Clients

How can you represent people who you know are guilty? It is a question every criminal defence lawyer has been asked on more than one occasion. I know I was asked this question even before I became a criminal defence lawyer, back when I first expressed an interest in practicing criminal law. This question if often asked in relation to some of most serious criminal offences such as sexual assault, murder, and any sexual offences with respect to children.

So, how do lawyers represent people who they know are guilty? Well the answer to that question has a can be divided into two parts; (1) the professional component, and (2) the personal component.

From a Professional and Legal Perspective, How do Lawyers Represent Guilty Clients?

As a criminal defence lawyer, it is just accepted that you are going to be representing clients who are guilty of committing criminal acts. However, whether a client may be guilty or not guilty is simply not a factor that any criminal defence lawyer ought to consider when agreeing to represent a client charged with a criminal offence. Quite often lawyers are not even aware whether a client is guilty or not guilty when they agree to represent them. Even when we are familiar with the nature of the allegations, we should not be picking and choosing our clients based upon our personal views and opinions.

As lawyers and officers of the court, we cannot to allow our personal views or opinions to jeopardize our professional duties and responsibilities to our clients. This means that no matter how horrific the crime or what our views are regarding a particular type of offence, we cannot abandon a client.

We have to continue to advocate fearlessly and resolutely on behalf of our clients. As criminal defence counsel, this means that we still have to hold the Crown Attorney to the burden of proving its case beyond a reasonable doubt. The Canadian Charter of Rights and Freedoms provides that all persons are presumed innocent until proven guilty. It is not our responsibility, nor are we entitled to determine guilt or innocence as lawyers. Our responsibilities encompass representing our clients’ legal rights pursuant to the laws that govern our country. Therefore, if the Crown Attorney cannot meet the burden of proving its case beyond a reasonable doubt, then even a client we know is guilty is still entitled to be found not guilty.

Finally, clients we know are guilty are still entitled to be treated with courtesy, respect, fairly and with dignity. Our responsibilities as lawyer does not including judging any of our clients, even those individuals who have committed some of the most horrific crimes.

From a Personal Perspective, How do Lawyers Represent Clients they know are Guilty?

As indicated above, a lawyer’s personal feelings about a particular client or the criminal offence alleged to have been committed cannot come before the rights and interests of a client. This can be particular challenging when working with clients who are alleged to have committed some very violent and horrific acts. Criminal defence lawyers, Crown Attorneys, police officers, and judges are not immune to from the vicarious impact that these types of cases can have, both mentally and emotionally.

As lawyers, we have to set aside our personal feelings and opinions when we are representing our clients, however this does not mean we can completely ignore them. We cannot go home at the end of the day and simply put aside the information and people we have come into contact with in our professional capacities as lawyers.

A lawyer who is not willing to address the impact his or her professional life can have on his or her personal life is more likely to be at risk for burnout. Conversely, a lawyer who has a greater self-awareness of the impact their work can have on their personal lives is going to be in a much better position to prevent any of their personal feelings or opinions from impacting their ability to professionally represent their clients to the best of their ability.

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Contact me today if you have been charged with a criminal offence and arrange a free consultation.

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Travelling with a Criminal Record

Travelling with a Criminal Record

Your ability to travel to other countries while you have a criminal record will depend upon the policies of the country you wish to travel to. Depending on the country you wish to travel to, there are various factors may impact your ability to travel, including;

  • The criminal offences which you have been convicted for.
  • The length of time since your last criminal conviction.
  • The sentence you receive for any criminal offences you were convicted of.

Travelling to Europe with a Criminal Record

Travelling with a criminal record to Europe is generally easier than trying to travel to the United States with a criminal record. If you are traveling for 90 days or less you are not required to apply for a visa, and it is unlikely that you will be asked about a criminal record when you enter. Many countries in Europe are part of the European Union and you are permitted from travelling from one country to another without going through customs, which means you should not have a problem travelling with a criminal record once you have gained entry into one of these countries.

If you are travelling for more than 90 days, you will be required to apply for a visa. When you apply for a visa, most countries will ask whether you have any criminal convictions. Depending upon the country and your criminal record, you may be denied a visa. However, minor criminal offences will generally not prevent you from obtaining a visa if you plan to stay longer than 90 days. If you are applying for a visa you should check with the country you will be travelling to about whether you might be denied entry.

Travelling to the United Kingdom with a Criminal Record

Although part of Europe, travelling with a criminal record to the United Kingdom can be much more difficult than travelling to other countries in Europe. If you are travelling with a criminal record, the United Kingdom will determine whether you conviction has been “spent”. The term spent essentially means whether enough time has passed that you are now considered rehabilitated. While there is information available online regarding how much time must have passed before your criminal record is spent, you should contact the appropriate officials in the United Kingdom to determine whether you may be denied entry based upon a prior criminal conviction.

Travelling to the United States with a Criminal Record

Travelling with a criminal record to the United States can be difficult. The United States will not permit a person to enter the country if that person has been convicted of a crime of moral turpitude. While there is no standard definition of a crime of moral turpitude, it is generally understood to mean a crime that offends the community’s standards of morality and honesty.

Many, but not all criminal offences are considered by the United States to be crimes of moral turpitude. While there is no exhaustive list of what exactly the United States considers to be crimes of moral turpitude, the following are some examples of criminal offences that may prevent you from travelling to the United States;

  • Murder or Manslaughter
  • Sexual Assault
  • Aggravated Assault
  • Possession for the Purpose of Trafficking or Trafficking a Controlled Substance
  • Any involvement in Terrorism-related offences
  • Theft
  • Robbery
  • Bribery
  • Forgery
  • Fraud

Some examples of criminal offences which are generally not considered crimes of moral turpitude by the United States are;

  • Simple Assault
  • Mischief
  • Impaired Driving
  • Break and Enter

However, where you have more than one conviction for any of these offences, you could be denied entry into the country. Even if you were convicted for a crime of moral turpitude many years ago, you can still be denied entry into the United States.

While you can apply to the United States Customs and Border Protection for a temporary waiver of inadmissibility, there is no guarantee that you application will be allowed. An application for a temporary waiver of inadmissibility is expensive, and you can expect to pay about $585. The application process can also take up to a year, so you will need to have your trip planned out well in advance.

Neither a pardon nor a criminal record suspension in Canada is recognized by the United States. United States Customs can access records held with the Canadian Police Information Centre (CPIC), and once Customs has been alerted to your criminal record, your criminal record may be kept in U.S. databases and will not be removed even if you receive a criminal record suspension. This is why it is important to obtain a criminal record suspension prior to attempting to travel to the United States.

Even if you do not have a criminal conviction but you have been before our criminal courts (i.e. you received a peace bond, a discharge, the charges against you were withdrawn or you were found not guilty) you should consider waiting until these records are removed from CPIC. Record of peace bonds and discharges are automatically removed from  after a period of time.

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Contact me today if you have any concerns about travelling with a criminal record.

Follow the link for more information on Criminal Record Suspensions.

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Falsely Accused of Domestic Assault

scales of justiceFalse Allegations

Despite what others may think, not every person that is arrested has actually committed a criminal offence. There are circumstances where people are wrongfully or mistakenly charged with having committed a criminal offence, and there are also circumstances where a person is falsely accused of having committed a crime. While it is never a good thing when an innocent person is charged with a criminal offence, as a criminal defence lawyer, it is much more offensive when the person making the allegation knows that it is not true. However, we live in world where there are people who are willing to fabricate criminal allegations to achieve a particular goal, whatever that that goal may be.

Click hear to read more about being Falsely Accused.

My Spouse Lied to the Police, Now I’m Charged with Assault. What can I do?

Being charged with any type of criminal offence is a stressful and overwhelming experience. Charges involving domestic assault can be even more stressful than many other charges because they involve family members or someone who you are having an intimate relationship with. In circumstances where you have been falsely accused, you need to know what to do to protect yourself and ensure you do not find yourself facing any further criminal charges.

Here are 5 things you should do if you have been falsely accused of domestic assault:

  1. You should begin by exercising your right not to make a statement to the police. One of the duties of police officers is to investigate allegations of criminal offences. The police are not there to assist you, to provide you with legal advice or to prove your innocence. Once you have been arrested and charged, there is nothing that you can say to them that will result in in the charges against you being withdrawn. Only the Crown Attorney has the discretion to request that the charges against you be withdrawn.
  2. Anytime you are charged with a criminal offence you should be contacting a criminal defence lawyer as soon as possible. Even if you cannot afford to privately retain a lawyer, find one who will provide you with a free consultation so you can receive some basic legal advice.
  3. It is important that you comply with all of your bail conditions. If someone is willing to attend the police station and make false criminal accusations against you, chances are they may be willing to make further allegations that you breached your bail conditions. Even if your accuser initiates contact with you or invites you to come over, you must not have any contact or communication with them if that is a term of your bail.
  4. Make a personal record of your recollection of the allegations made against you. If the events relating to the allegation are a complete fabrication, then make a record of where you were and what you were doing at the time you are alleged to have committed the assault. Many domestic assault trials involve only the complainant and the accused, and credibility is a significant issue in these trials. Read more about Domestic Assault Trials.
  5. Do not accept any resolution offered by the Crown Attorney or enter into a guilty plea for an offence you did not commit. In an attempt to resolve a matter quickly, there are individuals who are tempted to accept a resolution that does not result in a criminal conviction (i.e. peace bond or conditional discharge). You should receive your disclosure on the first court date and review it with a criminal defence lawyer so that you understand what your legal options are.

Reasons for Making False Allegations

There are many reasons why a person would make up an allegation of domestic assault, one of which is revenge. In some circumstances false allegations of domestic assault are made with the purpose of improving one’s position in family court proceedings, particularly when there is disagreement with respect to custody and access of a child. Parents have even been known to coach their children to report allegations of assault to try to improve matrimonial proceedings. Whatever the motive behind making the false allegations is, it is important that you follow the 5 steps listed above.

Domestic Assault Charges and Going to Trial

Domestic assaults are one of the more common criminal charges that are before our courts every day. In fact, most courts have a particular time, day and courtroom that address only charges relating to allegations of domestic assault. Many of these allegations of domestic assault are made by women where the alleged perpetrator is a male, and most allegations are ultimately substantiated with very few cases that result in a trial. However, if you have been falsely accused of domestic assault, then you should be prepared to have a trial. Allegations of domestic assault are taken very seriously by the police and the Crown Attorney. Even in circumstances where the evidence against you is weak, the Crown Attorney will prosecute the charges so long as there is a reasonable prospect of conviction. Read more about Getting Domestic Assault Charges Withdrawn.

Contact Me if You Have Been Falsely Accused of Domestic Assault

Contact me today and arrange a free consultation if you have been falsely accused of domestic assault or you have been charged with any other criminal offence.

Follow the link for more information on Domestic Assault, or see FAQs on Domestic Assault.

Read more articles on assault.

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