Criminal law -Stephen R. Biss, B.A., LL.B.

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Canadians brought to criminal court are generally charged with offences under the Criminal Code of Canada or the Controlled Drugs and Substances Act.


Arrest, Police Questioning, and Release

If you are stopped by police or are invited or brought to a police station you should be aware that the police will probably want to ask you questions. You should be very careful about answering police questions orally or in writing or on video. It is true that whatever you say may be used against you. Please note that in Canadian law it is always the Crown which must prove guilt. If you speak to the police about what happened you may actually help the Crown's case against you. Even if you are innocent, your admission that you were the driver or that you were present at the scene of the crime may become the only way that the Crown can prove an essential ingredient of its case. You or a relative will rarely be able to talk the police out of laying a charge. While honesty and co-operation are normally good character traits in our society, answering police questions or volunteering information may prove harmful to you in the final resolution of your criminal case. You should be willing to identify yourself and physically co-operate if you are arrested. Be polite and professional. If you decide to answer a question you should do so truthfully. Lying to police does more damage to your case than telling the truth, if you decide to speak at all.

Phone me at 905-273-3322 for free emergency legal advice either before going to the police station or at the police station. If you can't reach me or my answering service, ask the police to call the toll free number 1-800-265-0451 or 416-868-0720 for 24 hour duty counsel. The duty counsel is available to assist accused persons phoning from the police station. The 24 hour duty counsel will not assist parents or relatives. 

After dealing with you, the police may decide to release you by giving you an appearance notice or promise to appear. Such a document will require that you attend for photographs and fingerprints on a specific date. The document will also require that you attend Court on a specific date.

If you don't appear as required a bench warrant will be executed for your arrest and you will be charged with the offence of failure to appear. Once arrested you will find it difficult to obtain bail.

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Impaired Driving and Over 80

The offences of impaired driving and over 80, also described as impaired operation of a motor vehicle and excess blood alcohol, require the assistance of a lawyer. There are many technical defences to drunk driving related charges.

If you are convicted of one of these offences in Ontario, your driver's licence will be suspended for at least one year and you will frequently be prohibited by the judge from driving for one year. That may have a significant impact on your livelihood. A second conviction means at least 14 days in jail.

If a proper roadside screening demand or approved instrument breath demand is made to you in Canada you must comply. However, the results of any test taken may be rendered inadmissible if the police fail to comply with certain technical requirements under the Criminal Code of Canada or the Charter of Rights.

It is important that you diligently exercise your right to counsel at the police station by contacting your own lawyer or duty counsel forthwith. Whenever a police officer advises that you have a right to counsel (meaning a lawyer) say "yes, I want to contact a lawyer immediately." Diligently use that opportunity to consult with a lawyer of your choice or duty counsel to obtain immediate advice about your obligation to provide breath samples, your right in Ontario to refuse physical tests, and your right not to make any statement.

Once released you should immediately retain the services of a lawyer to defend you. Make notes of what happened using The Canadian Impaired Driving Checklist. Choose a lawyer with substantial experience related to this area of criminal law.

The usual fee for an impaired driving matter is about $3000.00 up to and including the first scheduled trial date. Additional trial days, expert evidence from a toxicologist, extensive preparation respecting Charter applications, and unreasonable delay motions cost more. Disbursements for breath room videos, transcripts, and other out-of-pocket expenses are also extra.

Unlike Perry Mason, your lawyer will request payment of a major proportion of the fee in advance of the first Court appearance , to be placed in a trust account. Once retained, an experienced criminal law trial lawyer will request disclosure from the Crown and police of all relevant materials including all documentation, Crown brief, and videos. He or she will carefully review these materials looking for technical defects. The process may take some time. Don't be afraid to book a consultation with your lawyer to go over the disclosure in detail well before trial.

In your jurisdiction your lawyer may be required to attend a pre-trial meeting with the Crown Attorney or a Judge prior to setting a trial date.

Stephen Biss has extensive experience in defending drunk driving and care or control cases since 1979. He also has the experience of prosecuting impaired driving matters as a Part-time Assistant Crown Attorney in Mississauga, Brampton, and Orangeville.

You can find out more about impaired driving and over 80 offences at The Canadian Impaired Driving Checklist. Please feel free to register your comments about drunk driving related offences at The Canadian Impaired Driving Debate Discussion.

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Sometimes persons of otherwise impeccable character steal something once during their life, especially at a time of emotional or financial stress. If you are charged with shoplifting (theft under), possession of stolen property (goods from another store), or price tag switching (fraud under), you should feel no shame in retaining the services of a lawyer to defend you.

If you are guilty, you may be eligible for a programme in Ontario known as diversion or alternative measures. Persons charged with shoplifting related offences who have no previous criminal record and who have taken items of small value may be permitted to attend a special programme where they listen to speakers, watch videos, and perhaps work in the community in exchange for a stay or withdrawal of the criminal charge.

If the charge is withdrawn there will be no criminal record of a finding of guilt or a conviction although there will be documentation kept by the police and the courts related to the withdrawal itself. In some jurisdictions you may be able to request the purging or destruction of such records after one year.

If you are not guilty (eg. store security apprehended the wrong person or you inadvertently walked out of the store with goods in your hands to retrieve a wayward child) you should defend the charge. If the Crown proves its case and the court does not believe you, however, you may face a finding of guilt and perhaps a conviction, fine, and probation.

Whether you are guilty or not guilty you should consult an experienced criminal law lawyer who knows the local Crowns, judges, and programmes available. The cost may vary. In my office guilty pleas and diversion applications cost about  $1000.00 depending upon how much negotiation is required. Trials cost about $2500.00 up to and including the first scheduled trial date. Disbursements and additional court dates are extra.

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Assault in Canada encompasses any intentional application of force to another person, including a gesture. If done in self-defence the act is not an offence (as long as the degree of force used is not unreasonable). Sometimes consent is also a defence. Assault causing bodily harm and assault with a weapon are much more serious.

If you are charged with a minor assault your lawyer may wish to explore the possibility of a common law or s. 810 peace bond. A peace bond does not result in a criminal record of a finding of guilt or conviction unless you breach the peace bond.

Domestic violence is totally unacceptable in Canada. A man who has allegedly assaulted his spouse can expect to be arrested, held overnight in jail, and brought to court the following working day in custody for a bail hearing. The man will find it difficult to obtain release unless he can demonstrate a stable alternative address, arrange for a relative (not his spouse) or friend to be a surety, and undertake to obey certain rigorous conditions including non-association with the spouse and non-attendance at his former home. He or his relatives should immediately retain both criminal law and family law counsel (i.e. a lawyer). The spouse who is the alleged victim should also immediately obtain counsel. 

It is often a good idea to attend at a doctor's office or emergency clinic immediately following the incident so that your injuries (alleged perpetrator or victim) can be documented. Photographs of injuries may also be helpful.

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See also: How to Write a Character Reference Letter for Criminal Law Sentencing

Criminal Records

There is a difference in Canada between a finding of guilt and a conviction. Once a person is found guilty of some offences the Court must decide whether or not it will enter a conviction. In such a case if the Court considers that it is in the best interests of the accused and not contrary to the public interest, the Court may refrain from entering a conviction and instead grant an absolute or conditional discharge. Although they have been found guilty, persons who receive absolute or conditional discharges may truthfully say that they have not been convicted. There are, however, records kept by the R.C.M.P. and the local police service of the absolute or conditional discharge. These records may be used against you during a police investigation, during a bail hearing (depending on your province), during a sentencing (depending on your province), and as a witness. About 1 year after sentencing you should consult a lawyer to determine whether such use is still permitted or is prohibited under the Criminal Records Act. A request should be made to the R.C.M.P. and the local police to confirm that they have purged their records.

Records kept by the R.C.M.P. and the local police force with respect to convictions may be used against you during a police investigation, during a bail hearing, during a sentencing, as a witness, or by a prospective employer or bonding company. Several years after sentencing you should consult a lawyer to determine if and when a pardon is available under the Criminal Records Act. Once a pardon is obtained you should ask your lawyer to contact the R.C.M.P. and the local police service to determine if their records have been purged.

Please contact our office at 905-273-3322 to arrange an appointment for a consultation to determine the impact of the Criminal Records Act in your own case, the appropriateness of a pardon application, and assistance in requesting that police purge their records.

The impact of a Canadian criminal record on travel, study, and employment in the United States is governed by the American Immigration and Nationality Act. We would be happy to assist you in applying to the United States Immigration and Naturalization Service for a "waiver" to permit you to enter the United States notwithstanding your Canadian criminal record.

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