Appeals

After a trial and a finding of guilty and sentence, the defendent or the Crown Attorney can seek to appeal the finding of guilt or the sentence. Depending on whether the charges are summary or indictable, an appeal may be necessary.

Often a defendant will claim that the judge did not apply the correct law to the facts and or was sentenced far too harshly. The Crown can appeal an acquittal or a sentence that is lenient.

If a guilty plea was entered and the defendant did not understand the implication of entering a plea of guilt, the plea may be struck.

This is general advice only, please call our office at 416-469-3443 to discuss your case.

Presumption of Innocence

There is always discussions about the role of the criminal justice system and how the courts go about finding a defendant responsible for their alleged crimes.

Until a defendant enters an informed guilty plea – stating I understand that I have done what the Crown has said I have done, I do not wish to challenge the evidence and I understand that I will be punished, everyone charged is presumed innocent.

Is this to let scoundrels get off on a technicality – No. This is the system for everyone charged in Canada. Why is it so you ask?

Imagine that you live in a small town. No one likes you because you are different. One day the well is filled with old tires and no one can get any drinking water. You and your family were sleeping when it happened, but who do you think would get blamed first? That is right, you would and no one would believe you no matter what you said and how often you denied it.

Is that fair? So instead of making you prove why you are innocent – proving a negative. Someone in the community has to prove a positive – who did it. This can be done using pictures, statements from others who did or did not see what happened, finger prints, foot prints, what ever is needed.

At the end of the day, if there is evidence, showing almost 100% a stranger did it, you will be found not guilty.

Is that not a better system?

Racial Profiling

There has been a lot of commentary in the media about racial profiling and carding by police. Which means that the police are focusing on a particular group or race, stopping and investigating these group members more than other groups. Recently, the police have been using these stops to gather information about members of the group, their friends and associates- that is carding them (filling out information). The police have stated that they need these investigative stops and information to know who is doing what for future cases.

Members of the group that the police focus on, are concerned and want profiling and carding to stop. Although, the Toronto Police Service have stopped the practice, municipalities such as Peel still card.

What does that mean for a community member. The Charter of Rights and Freedoms states that the you have a right to not be subject to unreasonable stops and searches, and you have a right to be told of why you are being stopped. However, the police have a right to investigate criminal matters that they are called about and to stop and investigate anyone, to find out if they are the culprit, or know something about the matter. Which means the police have a right to stop and investigate a particular matter.

If the police, are not investigating a particular recent offense, you have the right to not answer any questions, (such as providing your name or address) or to not consent to the search of your person (pockets, bags, knapsacks) and walk away.

You can ask the officer for their badge number and name, ask for their business card. If not provided to you, take a note of the squad car license plate, the time, date and area you are in.
With this information, you can make a complaint to the police division.

Impact of drugs

Although there has been much in the news about legalizing marihuana, unfortunately it is still not legal unless you are medically allowed to grow and consume it. By medically allowed, it is not someone self-diagnosing themselves with an illness, it is obtaining a doctor’s referral and obtaining a license from Health Canada.

What can happen if you do not have legal authorization to have marihuana, you can be charged with possession of a controlled substance, if you have a small amount, or possession for the purpose of trafficking if you have an amount that is more than personal use, or is divided into little baggies. Trafficking means giving it, selling it, holding it for someone else. If you have any money on you, that may be seized as proceeds of crime-that is you got this money selling drugs. These are offences under the Controlled Drugs and Substances Act., and Criminal Code of Canada.

Although you may get a blue slip of paper, it is a police order to appear at court and for your prints on a particular day and place. If you do not do so, you will be charged with failing to appear for court and/or failing to appear for prints which will cause you to be arrested and possibly held overnight. You will have to contact someone to sign a bail for you.

The police and the Crown may try to seize your money, car, house under the Civil Forfeiture Act, 2001, claiming you got these illegal activity or will use it for illegal activity in the future. You may not even be charged.

If you are found guilty of possession or possession for the purpose of trafficking you will have a criminal record, you will be stopped from going to the United States, you will have difficulty, getting work or volunteering. If you are an adult this record will be with you forever unless you get a criminal record suspension.

Impaired by Drugs

Driving while impaired by drugs such as marihuana, results in the same penalties as driving while impaired by alcohol or a combination of alcohol/drugs.

If you are found guilty of being impaired you will have a criminal conviction – a permanent criminal record, you will not be able to drive anywhere in Canada for at least 1 year and will have to pay a minimum fine of $1000 plus a victim fine surcharge. To be able to drive again, you will have to pay any outstanding fines both criminal and Ministry of Transportation fines and charges, pay for and install an Ignition Interlock Device in your car for at least one year, and obtain insurance, which will be very costly.

You may be charged with Impaired Driving because of a RIDE stop, being reported by someone, or a random stop by the police. You could be charged with Impaired Driving, if you are in a collusion, even if it is only you and your vehicle. If you do get into an accident and you are charged with driving while Impaired, your insurance will no longer cover you.

IF you refuse to provide a breath sample, or submit to any eye or walking test, you will be charged with Refuse to Provide Breath Sample and have the same criminal penalties outlined above.

Losing your right to drive and getting a criminal record will have a big impact on your life, work and ability to travel. If you are charged with Impaired, Over .80 or Refuse to Provide Breath Sample, please contact our office right away, so we can properly advise you as to your next steps.

Do not plead guilty until you get advice from our office at 416-469-3443.

Please note, we do not take legal aid certificates for Over .80, Impaired or Refuse to Provide Breath Sample offenses.

Conditional Sentences – or House Arrest

After a defendant pleads guilty or is found guilty after a trial, she may be sentenced to a period of jail with probation to follow. If the appropriate sentence is 90 days or less, and she has a job during the week, she may be able to go to jail on weekends until her 90 days are served. If she fails to turn up one weekend, she will be charged with Unlawfully at Large and have a further charge and additional time – which will probably not be weekends.

Or a defendant may be sentenced to house arrest – a conditional sentence. This requires the person to remain home except for specific exceptions, such as work, religious worship, counselling, probation, shopping for essentials. Again it is important that the conditions be followed because a breach of a conditional sentence brings the defendant back before the same judge who can order that he spend the rest of his house arrest sentence in actual jail.

Please contact our office to get legal advice about your specific case. 416-469-3443.

Mental health and criminal charges

There are cases in the news recently of crimes committed by defendants possibly due to their mental health issues, which unfortunately stigmatizes all those with mental illnesses. Often when families are dealing with a child or spouse who has mental health issue they call the police hoping that the police can take them to the hospital. Usually, if there is also a report of bad behaviour such as threats, assaults or damage to property, the police have to arrest the person to provide protection to the victims/complainants. Most times these family members are taken to jail instead of the hospital.

The courts can only order treatment if the person is unable to recognize where they are and what is happening in the court, the court can not force someone to see a doctor or take medication if they do not want to. All the court can do is make it an order of bail or probation and if the person does not follow the conditions they will get re-arrested. Also the court may order that the defendant not contact the family members that have contacted the police as the complainant. This does not help those with mental illnesses.

Before calling the police, contact your family doctor, the nearest hospital or the Centre for mental health and addiction (CAMH) at http://www.camh.ca/en/hospital/Pages/home.aspx or (416) 535-8501 or 1(800) 463-2338 toll free and get a diagnosis and help for your family member.

When to plead guilty?

The recent case Regina v. Muzzo s an example of an accused person pleading guilty before he has had a bail hearing or perhaps seen much of the Crown’s case. The Crown’s case or disclosure is the information the Crown has to prosecute the case. This may include witness statements, photographs, videos, statement by the accused person. Remember any statements you make will always be used against you – that is to make the case of the Crown stronger. Often an accused pleads guilty, to get it over with. They are tired of going to court and waiting for hours.

But pleading guilty may get you short term relief but long term trouble. With a criminal record, you may not be able to volunteer at your kid’s school or coach your daughter’s basketball team. You might have difficulty crossing the border (especially for drugs) or even getting the job you are over-qualified for. Your criminal record, will be forever unless you get a record suspension, which are only for certain charges.If you are told you will receive a fine, or suspended sentence, probation or weekends, remember these are all criminal convictions.

Before thinking of pleading guilty, contact our office at 416-469-3443 and we will review your disclosure with you or you can speak to duty counsel in the court that you are in. It is important that you do not rush into anything just to get it over with.

Driving Impaired and Over 80

In Canada, having .80 milligrams of alcohol in 100 millilitres of blood is a criminal offence. While in Ontario, your license can be suspended for 3 days and your car impounded if you as a driver have .50 milligrams of alcohol in 100 millilitrers of blood.

If you are found guilty of Over 80, you will have a criminal conviction – a permanent criminal record, you will not be able to drive anywhere in Canada for at least 1 year and will have to pay a minimum fine of $1000 plus a victim fine surcharge. To be able to drive again, you will have to pay any outstanding fines both criminal and Ministry of Transportation fines and charges, pay for and install an Ignition Interlock Device in your car for at least one year, and obtain insurance, which will be very costly.

If you are charged with Impaired Driving, you may have not blown over .80, but your driving was affected by the alcohol in your system. You could be charged with Impaired Driving, if you are in a collusion, even if it is only you and your vehicle. If you do get into an accident and you are charged with driving while alcohol is in your body, your insurance will no longer cover you. The criminal penalties are the same as the Over .80.

IF you refuse to provide a breath sample, you will be charged with Refuse to Provide Breath Sample and have the same criminal penalties as the Over 80 or Impaired offences outlined above.

Losing your right to drive and getting a criminal record will have a big impact on your life, work and ability to travel. If you are charged with Impaired, Over .80 or Refuse to Provide Breath Sample, please contact our office right away, so we can properly advise you as to your next steps.

Do not plead guilty until you get advice from our office at 416-469-3443.

Please note, we do not take legal aid certificates for Over .80, Impaired or Refuse to Provide Breath Sample offenses.

Estreatment Hearing

An estreatment hearing is the Crown’s attempt to obtain some or all of the money pledged for bail. The Crown can seek this money if the defendant has breached her bail, that is was charged with a further Fail to Comply Recognizance, Fail to Comply Undertaking while under bail conditions. The crown may seek to have the bail estreated if the defendant does not show up for court and there is not a reason why he is not at court. The crown may also request estreatment if the defendant is charged with new charges while out on bail even if a fail to comply recognizance is not one of the charges.

Once someone is charged, while out on bail the crown may seek to cancel any previous releases and are able to do so according to section 524 of the Criminal Code of Canada and the Crown may seek to estreat any previous bails as well.

Notice is provided to the surety and the defendant at their last known addresses by way of registered mail. A hearing is held at the Superior Court of Ontario. At the hearing, the surety and the accused may testify as to why the bail should not be estreated because of steps they took. Once an estreatment order has been granted, there is no opportunity to appeal.

Being a surety is a lot of responsiblity, please contact our office at 416-469-3443 if you have any questions about being a surety or an estreatment hearing.

Represent your self in criminal court

There are many stages of the case, where you need to pay attention.

1. Investigation and Arrest;
2. Bail;
3. Pre-trial & Disclosure;
4. Meeting with the Crown Attorney or judge;
5. Preparing for trial;
6. Trial Process;
7. Sentencing.

If you want to represent yourself and need some advice. Please call our office at 416-469-3443 or email us at info@princecriminallaw.com

A criminal record why is it harmful

A lot of young people think that a youth record is not a big deal and it disappears when they turn 18. Unfortunately, that is incorrect. A youth record may disappear if you do not get into any trouble as an adult during the time period needed to have the youth record expunged depending on the charge, whether it is summary conviction or indictable and the length of probation.

If you get into trouble as an adult and are found guilty your youth record will continue with your adult charges.

Many people think I have served my time why are they bringing up an old record. Past behaviour predicts future behaviour so the court and the Crown use your record to predict whether you will follow court orders and commit further offences. A record that has many fail to comply court orders or fail to appear court/prints will make it difficult for a person to get bail.

The record will also be used to decide what is an appropriate sentence for the current offences. Usually, the court will state a penalty will be higher than one received before.

It is best not to have a youth or adult record and if you are charged to follow the conditions of your bail.

Why should someone be released on bail?

A judge or justice of the peace can consider three important areas before deciding whether to release a person charged with a criminal offence.

One will they come to court. If there is a criminal record where someone has fail to appears or escape lawful custody convictions, or if there is a possibility of a long jail sentence the court will be concerned about whether the accused will come to court.

Second, will they get into further trouble. The court will look at a criminal record because past behaviour predicts future behaviour. If there is not a criminal record the court will look at any outstanding charges to see if past charges are similar. The court will also check whether there has been any breaches of bail or probation – that means the accused did not follow previous court orders. Another concern is whether the victim/witnesses will be harmed if the accused is released.

Third, the court will ask will the administration of justice be compromised if this person is released because of the nature of the offence, whether a firearm was used, the seriousness of the offence and the possibility of a long jail sentence.

These are the main concerns of the court and then the court looks at the person who has stepped forward to sign the bail for the accused. Do they know the accused, can they supervise and keep the accused out of trouble and will they call the police if the accused breaches her bail conditions.

These are the main concern of the court.

Update to police records check

The Ontario government is looking at the social, economic and travel implications of the police record check to those with no criminal records see the attached article:
http://www.thestar.com/news/queenspark/2014/12/04/province_to_legislate_what_police_can_disclosure_about_innocent_ontarians.html

Cheque Fraud

Lately, I have been getting young women clients who have been given cheques to cash for a couple hundred dollars, although the cheques are usually a lot more. These young women cash these cheques either at their own bank or through cheque cashing places using their own identification. A few days later, the bank discovers that these cheques are fraudulent. The bank calls the police and these young women are charged with Fraud, Utter Forged Documents, Possession of Property Obtained by Crime. The people who have given them the cheques are long gone and their cell phone numbers are disconnected.

So these young women face possible jail time and a criminal record. They are often asked to pay back the money if the cheque has been cashed.

Remember you can not get something for nothing. Do not be a part of this scam ! Do not jeopardize your freedom.

Who is responsible for a breach?

Can we hold the police and sureties civilly responsible when an accused person breaches their bail and commits further offences – even murder? This is the claim of the 2 families who are suing the Eaton’s Centre, the police, the government for not doing enough to stop Mr. Christopher Husband before his shooting rampage on June 2, 2012 at the Eaton’s Centre.

It will be interesting to see how the case progresses, here is the link to the article in the Toronto Star.

http://www.thestar.com/news/crime/2014/08/11/families_of_two_men_killed_in_2012_eaton_centre_shooting_sue_alleged_shooter_police_crown.html
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What may be on your police record?

You may be suprised to know that even if someone has not been criminally charged or had their criminal charges withdrawn, the information is on your police record, here in Canada.

This information is then revealed you apply for a criminal records check for a new job or volunteer placement or are trying to cross the border, into the United States.

A Toronto resident is suing the Toronto Police for the harm caused by their inaccurate police records, that affected her obtaining a job and getting custody of her niece.

Let’s hope that Canadian Police Boards review their policies and make sure that accurate information is retained and revealed.

The article link is here:

http://www.thestar.com/news/crime/2014/0/police_behaviour_in_womans_background_check_malicious_lawsuit_alleges.html

How to be a surety?

You get the call late at night or early morning on the weekend, someone you know and love has been arrested and they want you to come to court to sign a bail. You are still trying to understand what the police officer or duty counsel is saying to you.

Signing a bail means that you are supervising someone who has been charged with one or more criminal offenses, out in the community. As the supervisor, you are promising the court, that you will make sure that the defendant will attend their court dates and that they will follow all the rules of the bail. This promise by you is backed by a pledge of money – you will risk an amount of money if you do not fulfill your promise and or if the defendant is charged again.

When someone is arrested, the court and crown attorney are concerned about 3 issues:

1. Will the defendant come to court when they are required to;
2. Will the defendant commit further criminal offenses generally;
3. Will the public be outraged that this person is being released because of the type of the offense

So you run to court – bring your government issued identification to show who you are. Bring bank statements, pay stubs, rrsp or other investment statements, mortgage or deed showing that you have valuable property.

A good surety does not have a criminal record or if they have one from long ago – at least 10-15 years earlier. They are a Canadian Citizen or Permanent Resident and is not a surety for anyone else (unless it is for a a minor – someone younger than 18 years old.