The police want to talk to me, what should I do?
You should contact a lawyer immediately so that a lawyer advised you of what rights you have. You have a right to say nothing, to refuse to make any statement, and you are not under any obligation to attend the police station. However, if there is a warrant for your arrest then should make arrangements to surrender yourself as soon as possible.
The police have a duty to investigate allegations of crimes within their jurisdiction. You are not legally obligated to assist the police in their investigation unless of course their is a specific law or judicial order (search warrant/production order) requiring you to cooperate with the police. Therefore, whether you are a victim, a witness, or a suspect, the choice whether to cooperate with the police is entirely up to you.
I have just been arrested, what should I do?
You are entitled to request to speak with a lawyer immediately. Section 10 of the Canadian Charter of Rights and Freedoms guarantees you the right, upon arrest or detention, to retain and instruct counsel without delay. Upon advising the police officer that you wish to speak with a lawyer, the police officer’s right to ask you any further questions is suspended until you have an opportunity to speak with a lawyer in private. You must exercise your right to speak with a lawyer within a reasonable period of time.
How do I bail someone out of jail?
If a person is not released from jail after being arrested, he or she must be brought before a justice of the peace or a judge to determine whether he or she should be released on bail. If you are prepared and eligible to act as a surety, you must attend the bail court in the courthouse where the person is scheduled to appear. In order to act as a surety you must be prepared to ensure that the person you are acting as a surety for follows the conditions the court attaches to that person’s bail, and if that person does not abide by any of the conditions you are prepared to inform the police. It is strongly recommended that you retain a lawyer to assist you at a bail hearing.
I am allowed to return home to collect some of my belongings but I don’t want to breach my bail, what should I do?
To ensure you do not create a situation where you may be charged with breaching your terms of bail, you should contact the police and advise them that a condition of your bail permits you to attend the home to collect your belongings. The police will make arrangements for you to attend the home and will escort you in and out of the premises.
These circumstances often arise in cases involving domestic assault, where the accused is required to reside at another address until the matter is resolved. Because there will a term of bail that you are not to have any communication direct or indirect with the complainant, you are not permitted to arrange a time with your spouse/partner/common law partner to attend the home to collect some or all of your belongings. Similarly, your lawyer is not permitted to contact the complainant as this would constitute communication indirectly.
Why have I been charged with impaired driving and over 80?
Generally the police will charge you with both impaired driving and over 80. It is important to know that you cannot be convicted of both offences pursuant to the Kienapple Principle, which stands for the proposition that a person cannot be convicted of two similar offences arising from the same set of facts. The penalty for impaired driving and over 80 are the same, however the offence of over 80 deals only with alcohol, whereas the offence of impaired driving deals with alcohol or drugs or some combination of the two.
What is the Ontario Ignition Interlock Program?
The Interlock Program is both a measure used to combat drinking and driving in Ontario, as well as a method that drivers can return to the road prior to the completion of their mandatory licence suspension.
The Interlock device is installed into the vehicle at a cost to driver who has been convicted of impaired driving or over 80. The device requires a negative blood/alcohol reading prior to being able to start the vehicle. The device will also require the driver to stop the vehicle and record another negative sample at random intervals of time.
First time offenders will required the Interlock device for a minimum period of one year. Second time offenders will be required to drive with an Interlock device for a minimum period of 3 years. For anyone who has 3 convictions for impaired driving and does get their licence back after serving at least 10 years of a lifetime suspension, will be required to drive with an Interlock device indefinitely.
The person I am alleged to have assaulted does not wish to proceed with the charge. How can the charge be withdrawn?
The discretion to proceed with a criminal charge belongs to the Crown Attorney. Neither you or the complainant (victim), nor the police have the discretion to withdraw a criminal charge. You should know that in cases of domestic assault it will usually be in the public interest for the Crown Attorney to proceed with the charge, and that the Crown Attorney has been directed to exercise caution when the victim has requested the charge be withdrawn.
What happens on the first court date?
After you have been released by the police or released on a term of bail, you will be required to attend court on a date in the near future. This first court date is often referred to as a ‘first appearance date’ and it is a court administrative date, not a trial date. Some courts assign a first appearance to a specific court and/or a specific time during the day. For example, there are some courts were you first appearance date will be in the afternoon. If your matter involves a domestic assault, you may be assigned to a specific day of the week.
In most, but not all circumstances, disclosure will be available at the first court appearance. If disclosure is available, you or your lawyer will be given disclosure and provided an opportunity to adjourn the matter for a few weeks to review the disclosure and seek legal advice.
The first court appearance is not a trial date! Neither your accuser, nor any witness, nor the arresting officer will be present at court that day. The only options available on the first court date are to adjourn the matter or to plead guilty.
It is highly recommended that you speak with a lawyer before considering entering a plea of guilty. If you have not retained a lawyer for your first court date, duty counsel may be available to assist you on that particular day.
Am I eligible for diversion?
Diversion is generally only available for less serious matters where a person is before the court for the first time. Whether you are eligible for diversion is at the discretion of the Crown Attorney. Each file is reviewed by an Assistant Crown Attorney prior to or shortly after the first court appearance. Upon review of a file, an Assistant Crown Attorney will often complete what is commonly referred to as a Crown Screening Form, which essentially provides the Crown Attorney’s initial position it will be taking with respect to how the matter could be resolved. Often this screening form is attached to the initial disclosure provided by the Crown Attorney. On the screening form an Assistant Crown Attorney will have indicated whether some form of diversion is appropriate. If you are eligible and accept the diversion offered by the Crown Attorney, it is important that you complete all the necessary requirements of the diversion in a timely manner, and you obtain documentation confirming you have completed all the necessary requirements. Upon completion, your matter will return to court wherein the charge or charges against you will be withdrawn at the request of the Crown Attorney.
What is disclosure?
Disclosure is all the evidence the Crown Attorney will be relying upon to prove the charge or charges made against you. Disclosure can include, but is not limited to, material such as witness statements (video and written), police officer’s notes, property reports, drug analysis reports, etc.
What is the difference between a summary offence and an indictable offence?
Most criminal offences in the Criminal Code are hybrid offences. This means that the Crown Attorney may proceed with a criminal charge either summarily or by indictment. There are also offences which are strictly summary offences (i.e. mischief) and other offences which are strictly indictable offences (i.e. murder). If the Crown Attorney wishes to proceed summarily, then an information (charge) must be sworn within 6 months of when the offence is alleged to have taken place. Where a charge is laid 6 months after the alleged offence date, then the Crown Attorney may still proceed summarily if it obtains consent from the accused. The potential minimum and maximum penalties for hybrid offences are less serious where the Crown elects to proceed summarily than if the Crown Attorney elects to proceed by indictment.
What is the difference between the Ontario Court of Justice and the Superior Court of Justice?
The Superior Court of Justice is where the most serious criminal offences are dealt with, such as homicide. The Superior Court of Justice is also where all jury trials are held. Depending upon the offence, an accused may have the option to elect to be tried by Provincial Court Judge alone, by a Superior Court Judge without a jury, or by a Superior Court Judge with a jury. There are other offences in the Criminal Code that are in the absolute jurisdiction of the Ontario Court of Justice, and others that are strictly dealt with in the Superior Court of Justice.
Should I plead guilty?
You should only plead guilty if the following three factors are present; (1) you are guilty of the offence you are charged with, (2) the Crown Attorney can prove all the elements of the offence for which you are charged, and (3) you receive some consideration for entering a guilty plea.
What happens if I decide to plead guilty?
Prior to deciding whether you should plead guilty, you should discuss your options with a lawyer. As criminal lawyer I can advised you on the following;
- Whether I think you should consider pleading guilty.
- The strengths and weaknesses of the Crown Attorney’s case.
- The likelihood of success if you go to trial.
- What kind of sentence the Crown Attorney is seeking or will likely seek should you agree to plead guilty.
- What I think would be an appropriate sentence taking into account the all the circumstances of your case.
- If you plead guilty you are giving up your right to have a trial and the right of putting the Crown Attorney to the burden of proving your guilt beyond a reasonable doubt.
- The judge has the final say regarding what your sentence will be, notwithstanding that the Assistant Crown Attorney and I may put forward a joint submission with respect to the appropriate sentence.
- You must be entering a guilty plea freely and voluntarily.
If you decide to plead guilty your matter will be put before a Judge of the Ontario or Superior Court of Justice. The Judge will likely go through a plea comprehension with you. This is where the judge asks you whether you understand that you are not required to plead guilty, that you are giving up your right to a trial, that you are pleading guilty freely and voluntarily, and that the Judge is not bound by any joint recommendation presented by the Assistant Crown Attorney and myself.
The Assistant Crown Attorney will read in the facts of the case and advise their position with respect to what they feel would be an appropriate sentence. I will then make submissions with respect to what I feel is the appropriate sentence. The Judge will then make a determination of what the appropriate sentence will be and the reasons why he/she supports the sentence imposed.
What is the difference between (A) an absolute discharge, (B) a conditional discharge, (C) a suspended sentence, and (D) a conditional sentence?
Simply put, a discharge is a finding of guilt, but no conviction. For a person to be eligible for a discharge, he or she must have committed an offence for which there is no minimum sentence, and there is no maximum sentence of 14 years imprisonment or life imprisonment. A discharge must be in the best interest of the accused, and must not be contrary to the public interest. An absolute discharge occurs when a judge makes a finding of guilt but discharges the accused absolutely, without conditions. A conditional discharge is a discharge where conditions are attached. Where a person violates the conditions of a probation order after being given a conditional discharge, a judge has the authority to enter a conviction and impose a sentence.
A suspended sentence occurs when the judge suspends the passing of a sentence and releases a person on a probation order. Factors that a judge will consider when determining whether a suspended sentence may be appropriate are the age and character of the offender, the nature of the offence, and the circumstances surrounding the commission of the offence. For a judge to impose a suspended sentence there cannot be a mandatory minimum sentence prescribed by law. Also, the maximum period of probation a judge can impose is 3 years. Finally, a judge has the authority to revoke a suspended sentence where a person has been convicted of a criminal offence while being on probation.
A conditional sentence is a jail sentence that you serve in the community. Simply put, you will be subject to conditions often referred to as house arrest. Generally, you will be permitted to leave your place of residence only for the purpose of employment, school and to attend court when required. You will be permitted a couple hours a week (usually on the weekend) to spend in the community to obtain life necessities, such as groceries.
Am I eligible for a record suspension and when can I apply?
To be eligible for a record suspension you must have completed your sentence, including any period of probation and paid any fines or other financial penalties assessed. You must also wait the required amount of time after the completion of your sentence. Finally, you must demonstrate you are a law-abiding citizen.
You should be aware that there are circumstances where you may not be eligible for a record suspension. For example, if you have been convicted of a sexual offence involving a minor you are not eligible for a record suspension unless you fall within a limited exception. Furthermore, if you have been convicted of more than 3 indictable offences each with a sentence of 2 years imprisonment or more, you are not eligible to apply for a record suspension.
If you were convicted of an offence where the Crown proceeded summarily or for an offence which is strictly a summary offence, you can apply for a record suspension 5 years after the completion of your sentence. If you are convicted of an offence where the Crown proceeded by indictment or for an offence which is strictly an indictable offence, you can apply for a record suspension 10 years after the completion of your sentence.