Impaired Driving Charges in Toronto

Drinking and Driving and Impaired Driving

Being charged with “drinking and driving” is a criminal matter in Canada governed by the Criminal Code. This article is a brief and general overview providing legal Information on Drinking and Driving, Impaired Driving, Over 80 and Refuse Breath Sample charges in Toronto, Ontario. Those looking for advice on a drinking and driving charge should consult a criminal lawyer.

What is drinking and driving?
Driving while impaired by alcohol, driving with more than 80 milligrams of alcohol in 100 millilitres of blood (Over 80) or refusing to provide a breath sample are all examples of drinking and driving offences in Canada.

What are the penalties for drinking and driving?
The Criminal Code provides a minimum fine of $600 for a first offence in addition to a criminal conviction registered on your permanent record. Subsequent drunk driving convictions carry minimum jail penalties beginning with 14 days in jail for a second conviction. A drinking and driving conviction will also require a mandatory driving prohibition preventing a prohibited driver from driving anywhere in for a minimum of one year, or three months in a province such as Quebec or Alberta that has an concurrent ignition interlock program. Ontario does not currently participate in an ignition interlock program.

In addition to the penalties mandated under the Criminal Code, a conviction for drunk driving will also drastically affect your motor vehicle insurance coverage and premiums. In Ontario, you will probably be required to insure with Facility Association, which insures high-risk drivers and exacts high premiums. For each of the three years following your conviction, Facility Association will levy a 100 per cent surcharge atop your premiums. It will impose more surcharges, up to a maximum of 250 per cent, for other convictions relating to the same incident, such as careless driving or failing to remain at the scene of an accident. Each insurance company has its own conviction surcharge schedule.

What is the difference between impaired driving, over 80, and refusal to provide a breath sample?

Impaired Driving
In order to establish an impaired driving charge, the Crown must prove that the driver’s ability was impaired by alcohol or a drug. Evidence of impairment may be proven by a combination of driving observations and physical observations of the driver. Evidence of erratic driving, weaving, crossing of the centre line or evidence of a motor vehicle collision may all be used to support an inference of impaired driving. Personal observations tending to reveal signs of impairment may also be relied upon, including: an odour of alcoholic beverage emanating from the driver’s breath, bloodshot eyes, dilated pupils, unsteadiness or slurred speech.

Over 80
Unlike impaired driving, the offence of “over 80” does not require proof of impairment of any kind, only proof that the driver had a concentration of alcohol in their blood exceeding 80 milligrams of alcohol in one hundred millilitres of blood. This alcohol concentration reading is usually determined from an analysis of breath samples obtained by police and processed with a breathalyser machine capable of providing such results. These results can also be obtained by testing a sample of the driver's blood.

Refuse to Blow or Refuse to Provide a Breath Sample
The offence of refusing to provide a breath sample, either for the roadside screening device or an approved breathalyser machine at the police station is another drinking and driving offence. The consequences of a conviction on only this charge are essentially the same as those for a conviction on impaired driving or over 80, namely, a criminal conviction, driving prohibition, license suspension and the same insurance consequences.

A person convicted of refusing to provide a breath sample may also be convicted of driving while impaired. However, the rules of double jeopardy prevent convictions for both over 80 and impaired driving arising out of the same incident.

Stopping a Motorist - From traffic stop to conviction:
In Canada, provincial driving legislation such as the Highway Traffic Act in Ontario, enables police to stop and investigate drivers for drinking and driving offences. Police may also set up stop checkpoints to pull vehicles over for the purpose of checking for signs of drunk driving, known as R.I.D.E. (Reduce Impaired Driving Everywhere).

This power to investigate a driver of a motor vehicle regarding their sobriety does not permit an officer to demand a roadside breath test. In order to require a person to submit to a roadside breath test, the person under investigation must be operating or “in care or control” of a motor vehicle at the time of investigation AND the officer must reasonably suspect the person under investigation has alcohol in his or her system.

The officer may have a reasonable suspicion the person has alcohol in their body if they admit to have recently consumed alcohol or if the person under investigation demonstrates visible signs of impairment. Once the officer reasonably suspects a person to have alcohol in their system, they may require a driver to provide a sample of their breath for testing. In some instances, the failure of police to establish they had grounds to suspect alcohol had been recently consumed may amount to a defence to an over 80 or refuse breath sample charge because the unlawful breath demand would invalidate the subsequent test results.

The roadside screening test results will either return a “pass”, “warn” or “fail” result. The machine is usually calibrated to fail when a person has over 100 milligrams of alcohol in 100 millilitres of blood.

Failing the roadside test will not in and of itself support a conviction for over 80. Evidence of a failed reading is not proof of the level of alcohol in the person’s blood. It is only used to justify a further demand for a sample of breath into an “approved instrument” capable of providing a proper reading of the person’s blood alcohol level.

A “fail” result on the roadside breath test will permit an officer to arrest the driver for the offence of over 80. An arrest for over 80 may also be accompanied by an arrest for impaired driving if the driver exhibits clear signs of impairment by the manner they were driving the vehicle or physical observations of the driver under investigation.

Can I speak to a lawyer before I give a breath sample?
Upon arrest or detention, an individual is entitled to consult with a lawyer for the purpose of obtaining advice about their situation. Everyone on arrest must also be advised of the availability of a 24-hour toll-free legal aid number for those who do not have a lawyer to call but wish to obtain legal advice. If the police fail to advise a person under arrest of these constitutional rights, or fail to provide the person under arrest an opportunity to contact counsel, the failure to do so may result in the exclusion of the defendant’s alcohol level readings obtained at the police station. This exclusion of evidence would likely result in an acquittal at trial.

The right to consult with counsel is not an absolute right at the time of a roadside demand for a breath sample (as the accused is not under arrest at this time). Recent case law developments suggest that in some circumstances, a person required to provide a roadside breath sample may have a right to consult with counsel prior to providing a breath sample. In some instances, the failure to permit consultation with a lawyer prior to providing the sample may result in the exclusion of the sample and any subsequent evidence. Each situation is fact specific. An experienced criminal lawyer who regularly defends drinking and driving cases will be able to provide you with an opinion on whether or not your constitutional rights have been violated by the police during the course of their investigation.

Drinking and Driving Defences
There are a number of ways to defend against allegations of drinking and driving. The defences to these types of allegations vary, from challenging the accuracy of the machine receiving the breath sample, to challenging the officer’s belief for demanding the sample in the first place. Other defences may be raised based on the denial of constitutional rights prior to the taking of breath samples.

The area of drinking and driving case law is extremely complex and it is difficult to summarize all of the important aspects of the law in a short article. Given the numerous consequences of a drinking and driving conviction, it is important to consult with a lawyer in order to identify possible defences to the allegations. For a free initial consultation, call me at 416.297.7200 to discuss your case.
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Criminal Assault Charges in Canada

Criminal Assault in Canada - http://www.yourbestdefence.com/

What is an assault? The definition of assault is found in the Criminal Code at section 265. Generally an assault occurs when a person directly or indirectly applies force intentionally to another person, or who attempts or threatens to do so without consent.

What degree of force is required? A person need not harm someone for an assault to occur. An accused may commit an assault although he exerts no degree of strength or power when touching the victim. The force however must be offensive or an affront to an individual's dignity. A push or pinch may be sufficient to establish an assault.

What if I accidentally hit someone? The application of force must be intentional. Accidentally hitting someone during the course of an epileptic seizure, for example, would not constitute an assault. However accidentally hitting one person in an attempt to hit another is not a defence to assault. It does not matter who the intended victim is, as long the offender intended to apply force to any individual, it is still an assault.

What is the difference between an assault, an assault with a weapon, an assault causing bodily harm and an aggravated assault? The difference between an assault and an assault with a weapon is the vehicle used to deliver the force. Generally an assault or “simple assault” is caused by the application of force from a person’s extremities such as hands, legs or feet. An assault with a weapon generally involves the application of force with an inanimate object such as a stick, bat, knife or object thrown and can even be delivered by something other than an inanimate object including a dog ordered to attack a person.

The difference between assault, assault causing bodily harm and aggravated assault is the harm suffered as a result of the application of force. An assault that causes any hurt or injury that is not transient or trifling in nature and interferes with the complainant’s health or comfort will meet the definition of bodily harm. In order for an assault to meet the definition of an aggravated assault, the injury must be much more substantial.

Any sort of injury that wounds, maims, disfigures or endangers the life of another meets the definition of an aggravated assault.The amount of harm caused by an assault will likely dictate the type of sentence imposed by the judge. While some “simple assault” charges may not result in any jail time, an aggravated assault charge may result in a sentence amounting to several years in jail depending on the severity of the injuries inflicted on the complainant.

Defences to Assault

Consent - For an assault to have occurred, the Crown must prove that the application of force by the accused person was done without the consent of the party to whom the force was applied. Consent may be express or implied. It many instances, consent is implied and this may be determined from the circumstances surrounding the offence. Generally there is an implied consent to pat a co-worker on the back or shake hands with a relative stranger. However, fraudulently-obtained or forcefully-extracted consents and are really no consents at all. In addition, no one may consent to being killed or seriously injured. A consent to a fight does not normally imply permission to inflict significant bodily harm. Thus where the offender intends, or actually causes, significant harm or death, consent is not a defence.

Mistake Belief in Consent - Even if the Crown proves that consent did not actually exist, it is still available to the accused to argue that they honestly believed the aggrieved party had consented to the application of force. An honest but mistaken belief in consent will also afford a defence to an assault charge.

Self-Defence - The law recognizes that a person is justified in using force or threatening force in certain circumstances to protect either themselves, close family members or property. The basic rule permits the use of force if the force is reasonable in the circumstances. Whether the use of force is reasonable is entirely fact specific and can depend on a number of different factors.It is important to remember that every allegation of assault is a fact specific inquiry.

Consulting a lawyer will assist you with identifying potential defences to this type of allegation. I can be reached at 416.297.7200 to discuss your situation. For more information please consult my website at http://www.yourbestdefence.com/.

The Criminal Pardon Process in Canada

The Criminal Pardon Process in Canada - http://www.yourbestdefence.com/

What is a pardon? A pardon is a government act that seals or expunges a criminal record. Is there more than one type of pardon? Canada has essentially two types of pardons. One is a “free pardon” and one is a “conditional pardon”. Both the Criminal Records Act and the Criminal Code provides for the granting of “conditional pardons”, but a “free pardon” can only be obtained under the Criminal Code provisions.

Under the Criminal Code, the power to grant both free and conditional pardons is essentially the prerogative of the Government of Canada, allowing the Cabinet to exercise an unfettered discretion. As such, the granting of a pardon under this section of the Criminal Code is rarely, if ever, used. More commonly a conditional pardon is granted under the Criminal Records Act.

What is the difference between a free pardon and a conditional pardon? When an individual receives a free pardon, "that person shall be deemed thereafter never to have committed the offence in respect of which the pardon is granted”. Thus a recipient of such a pardon may rightfully answer that he or she has never been convicted of the pardoned offence. For adults, all other pardons, including pardons under the Criminal Records Act are conditional pardons, meaning they do not nullify the original conviction.

When is a pardon available? The National Parole Board has exclusive jurisdiction to grant pardons under the Criminal Records Act. As long as the applicant meets the criteria set out in the act, he or she will receive a pardon under the act. The criterion for eligibility depends on the type of offence to be pardoned. Two different waiting periods apply; five years for an indictable offence and three years for a summary offence.

For summary offences, a pardon is available if the offender has not been convicted of an offence under “an Act of Parliament or a regulation made under an Act of Parliament” during the three year period from the date the sentence is completed. For indictable convictions, the waiting period is five years from the date the sentence is completed. In addition, the Applicant must also be of good conduct during that five year period in order to be eligible for a pardon for an indictable offence.

When is a sentence considered “completed”? A sentence is not completed until all terms of probation have expired as well as the payment of any fines or restitution orders. In calculating the period, a jail sentence is considered to end only on the expiration of the stated period of the sentence and not when the offender is actually released. Thus it is impossible for somebody serving a life sentence to be eligible for a pardon even if they receive parole.

What is the advantage of a pardon? According to the Criminal Records Act, a pardon under the act is evidence of the fact the conviction "in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant's character" and except if revoked, "vacates the conviction in respect of which it is granted" and for most purposes, "removes any disqualification to which the person so convicted" would be subject. For immigrants and potential immigrants, a pardon removes a potential obstacle to becoming a Canadian citizen or landed immigrant.Another advantage is that federal government records concerning convictions for pardoned offences must generally be kept separate and cannot be disclosed. The principle advantage to a pardon relates to employment and access to educational and other institutions for which a criminal record might be an impediment. The act prohibits application forms that require an individual to disclose a pardoned record.

Can a pardon be denied? The National Parole Board can deny an applicant on the basis that the applicant is found to be not of good conduct. However, applicants may reapply after one year.

Will my employer know about my application for a pardon? Maybe. In some instances, The National Parole Board may make inquiries with the applicant's employer about their character.What are the limitations to a grant of pardon? A conditional pardon under the Criminal Records Act does not remove the fact that a person was convicted. Thus foreign governments will normally not recognize such a pardon. As well, consequent prohibitions arising from a conviction, for instance, prohibitions on possession of a firearm or on driving are not affected by a pardon although the period of the prohibition is not used in calculating the waiting period. A free pardon may be recognized by foreign governments.

Can a pardon be revoked? Only a pardon under the Criminal Records Act is subject to revocation. Such a pardon is automatically revoked by a subsequent conviction for an indictable offence. Otherwise, the National Parole Board has the discretion to revoke a pardon on a hearing with notice to the applicant when the person is:

1. Convicted of a summary offence;
2. On evidence the person is no longer of good character; or
3. If satisfactory evidence establishes the individual obtained the pardon by knowingly making a false representation or knowingly concealing a material particular.
   

This type of revocation is not automatic and the subject party may be able to make representations in writing or orally that the pardon should stand. Evidence that a person is no longer of good character might be furnished by a conviction in another country or perhaps by other means.

Do I need a pardon for a discharge? Conditional and absolute discharges do not require a pardon. Absolute discharges granted after July 24, 1992 will automatically be removed from a criminal record after one year. A conditional discharge will automatically be removed after three years. How do I get a pardon? A pardon is only available on application to the National Parole Board. You may complete the application on your own or are entitled to retain a lawyer to assist you. The board processes about 10,000 applications a year and the backlog of cases may mean that an application will take as long as two years to process. An incorrectly completed application may substantially delay the process.

If you would like further information about a criminal pardon call me at 416.297.7200 or visit my website at http://www.yourbestdefence.com/.

Criminal Court Procedure in Canada

Criminal Court Procedure in Canada

Generally, every person charged with a criminal offence in Canada will go through a similar procedure. Outlined below is some of what you can expect to happen during the course of a criminal charge.

The First Appearance in Court

After being charged with a criminal offence, a police officer has the discretion to hold you for a bail hearing or release you from the police station. To learn more about the bail hearing process, read The Bail Hearing Process. whether or not you are held for bail or released from the police station, you will be required to attend court on a certain date and time.

This appearance in court is sometimes referred to as your “first appearance”.

Do I need a lawyer to attend my first appearance in court? Prior to your first appearance, you can retain a lawyer to attend court with you or even to attend your court appearances on your behalf- depending on your retainer agreement. Your lawyer is there to speak for you, so you don't have to worry about saying the wrong thing. In most courthouses, the Crown Attorney will give priority to the cases where a lawyer is present in court PRIOR to dealing with any cases involving unrepresented accused persons. Many accused persons retain lawyers prior to their first appearance in court.

Who will be at court on my first appearance? Your first appearance is NOT your trial. None of the witnesses or police officers involved in your case will be there. It is NOT an opportunity to tell the judge your side of the story. The central purpose of your first appearance in court will be to obtain the details of the allegations against you.

Any evidence the Crown intends to use against you at your trial MUST be disclosed to you in advance. This procedure is called “disclosure”. Your “disclosure” may include, police or other witness statements, surveillance videos, photographs or any other type of evidence that relates to your case. The Crown must disclose ALL relevant materials to you, regardless of whether they assist the Crown's case or not. Evidence in the Crown's possession that points towards your innocence must also be disclosed to you.Obtaining full disclosure in your case is crucial as “disclosure” will tell your lawyer almost everything they need to know about the strength of the Crown's case against you and how they can best defend you against the charges you are facing.

Quite often, disclosure will not be provided on your first appearance in court. If disclosure is not available, you (or your lawyer on your behalf) will have to return to court on another occasion to obtain it from the Crown. The nature and complexity of the allegations will usually dictate how quickly disclosure is provided. The more serious or complex a case is, the longer it usually takes to obtain the disclosure.

Second Appearance and Subsequent Court Appearances

If disclosure is not provided to you (or your lawyer) at the first court appearance, you will have to return to court a second time (or possibly a number of times) in order to obtain it. Nothing meaningful can be done in your case without disclosure. However once disclosure is received, the next step is to discuss the case with a Crown Attorney. This step is often referred to as a “crown pre-trial” or “crown resolution meeting”.

Crown Pre-trial/ Resolution Meeting

The pre-trial/resolution meeting between your lawyer and the Crown Attorney usually takes place over the telephone after disclosure has been received and reviewed by your counsel.Typically what is first discussed at this meeting is whether or not the Crown intends to proceed on the charges as laid. In the event they wish to continue the prosecution, the Crown and defence lawyer may discuss whether the accused person will be pleading “guilty” or “not guilty”.

A “not guilty” plea will likely result in a trial. If the accused person intends on pleading “guilty”, the Crown will usually outline the charge or charges they require the accused to plead guilty to, the facts surrounding the allegations to be accepted as part of the guilty plea and what the appropriate sentence may be. If the case will be heading to trial, the Crown and defence lawyer may discuss which witnesses are required for trial and may estimate the length of trial time required to hear the matter so an appropriate trial date can be obtained.

Depending on the complexity of the case, or whether or not defence counsel and the Crown can agree on the resolution position, one of the parties may request a judge to become involved in the pre-trial discussions and act as a mediator. This meeting with the judge is referred to as a “judicial pre-trial”.

Judicial Pre-Trial

In some cases, either the Crown or defence counsel may request the assistance of a judge during the pre- trial discussions. A judge may give their opinion on the merits of the case in an attempt to sway one side or the other towards a fair compromise. A judge may also give their opinion on an appropriate sentence in the event of a guilty plea or assist with estimating the duration of time required should the case go to trial. It is often a strategic decision to involve a judge in pre-trial discussions. Every case is fact-specific. After a judicial pre-trial is completed and assuming Crown counsel wishes to continue the prosecution, an accused person will have to make the decision to go to trial or to resolve their matter by way of a guilty plea.

Guilty Plea

A guilty plea requires admitting the facts that form the basis of the charge or charges before the court. Once you have decided to plead guilty, a date is scheduled for the guilty plea to take place. In some cases, the plea may take place before the judge who participated in the judicial pre-trial (if one has occurred) but this is not always the case, nor is it necessary. One of the most important aspects of a guilty plea is the sentencing hearing that occurs after the plea. In some cases, the Crown and defence counsel may jointly ask for the same sentence. In other cases the Crown and defence counsel may disagree on the appropriate sentence resulting in both parties asking the judge for completely different sentences. Ultimately, it is up to the judge to impose the appropriate sentence based on the specific facts of each case and the details of the offender being sentenced. In the event that an accused person does not wish to plead guilty, a trial date is scheduled.

Trial Date

As you can see, there is quite a process before a criminal case ends up at trial. A trial usually occurs several months (sometimes even a year or longer) after the offence was alleged to have occurred. At trial, the Crown attorney will lead evidence from witnesses and other sources to demonstrate that you are guilty of the offences before the court. Your defence lawyer will have an opportunity to question any witness called by the Crown. Once the Crown believes they have established proof of your guilt beyond a reasonable doubt they will rest their case. At this point, you may chose to testify or call evidence on your own behalf to challenge the Crown's case.

Hiring a lawyer to work with you through the entire court process will ensure that you are properly represented at each and every stage of the proceeding. A lawyer is not just for someone who intends on having a trial. Your lawyer will also ensure that your rights are protected at each and every step of the proceeding. This is crucial to ensuring a winning strategy and a positive outcome in your case regardless of whether or not it your case goes to trial.

To discuss your case with a lawyer call 416.297.7200 or visit http://www.yourbestdefence.com/ for more information on criminal law related topics.

The Bail Hearing Process

Does everyone charged with a criminal offence require a bail hearing? For most criminal offences, the police have the choice to release a person charged with a criminal offence without requiring a bail hearing. Police will generally not release a person without a bail hearing where they have concerns on one of the following grounds:

1) they need to establish the accused person’s identity
2) they fear the accused will destroy evidence relating to their investigation
3) they fear the accused will continue or repeat the offence or commit other criminal offences
4) they have reasonable grounds to believe the accused will not show up for court.

If the police hold any of these concerns, they will likely hold the accused person for a bail hearing.

What happens at a bail hearing? At a bail hearing, the court will decide whether or not the accused person should be released from jail while they await their trial.

How does the Court determine who can and cannot be released? In determining whether or not an individual facing criminal charges should be released from jail, the Court must be satisfied that the accused person will attend their court dates, that there is not a substantial likelihood that the accused would commit further criminal offences while released on bail and that the community would not be offended by the person's release given the serious nature of the offences alleged and the strength of the Crown’s case against the accused.

The onus is generally on the Crown to show why the accused should not be released on bail. In some situations, the onus is switched and it is the accused who must show why he should not be detained in jail while he awaits trial.

Most commonly, the reverse onus provisions are triggered when an accused person is already released on bail for other charges or is charged with a specific offence that imposes the reverse onus procedure, such as drug trafficking. A reverse onus situation may also be triggered when the person charged does not ordinarily reside in Canada.

For a person in custody, a bail hearing is often a critical juncture that will affect their decision on how to proceed with their case. This is a very important part of the criminal process and cannot be underestimated.

What does an accused person need to do to in order to get bail? At the bail hearing stage, the person charged will likely need the assistance of his or her friends or family members to come to court and act as sureties.

A surety is somebody willing to supervise the accused person while released on bail and is responsible for ensuring that all of the conditions of the bail are being followed. In some instances, the accused person may be required to live with the surety and the surety will likely be required to pledge a monetary amount towards the bail. This monetary pledge ensures that the surety will properly supervise the accused person - or risk losing their money should they fail to do so. In most instances, the surety need only establish that they have access to the amount of money being pledged and need not deposit the money with the courts. Bankbook statements or property deeds are examples of ways the surety can prove their assets to the Court.

How many sureties does somebody need to get bail? How much money will the sureties need to pledge? The amount of sureties and money to be pledged can vary depending on a number of factors such as the number of criminal charges the accused is facing, the type of charges, the financial situation of the surety, the surety’s ability to supervise the accused, whether the accused has a prior criminal record and the extent of the record among other considerations. Every case is fact specific and the decision of how many sureties are required and how much money they must pledge is ultimately a decision for Judge or Justice presiding over the bail hearing.

A surety may be asked to testify in Court about their plan to supervise the accused and perhaps give some background information about the accused person as well as their personal relationship with the accused in order to determine their suitability as a candidate to supervise the accused while on bail.

One of the most important roles a defence lawyer has at the bail hearing stage is to ensure that potential sureties at the bail hearing are adequately prepared for the process of testifying in court. The sureties should know ahead of time what questions will be asked of them by the defence lawyer and even what questions they may be asked by the Crown Attorney. One wrong answer to any of the questions asked in Court could result in the denial of bail for the accused.

Experienced criminal lawyers know what questions will likely be asked at a bail hearing and can prepare sureties ahead of time for the “tough” questions. A well prepared surety is often the difference between securing a release on bail and a detention order.

What if the surety can’t attend court for the bail hearing? If sureties are absent, one option may be to postpone the bail hearing to a later date when the sureties can be in attendance. There is no limit to the number of times a bail hearing can be postponed; however, a lawyer is usually only retained to appear for one bail hearing appearance. Postponing the hearing may result in additional costs incurred with the lawyer to have them appear on another date.

What happens if the accused is not granted bail? In the event of a detention order (denial of bail), the accused will have to bring a special application to the Superior Court of Justice to have his detention order reviewed by a higher Judge. For more information on the detention review process, please read "Changing My Bail Conditions"

Additional information can also be found on my website at http://www.yourbestdefence.com/. Alternatively, I can be reached at 416.297.7200 for a free consulation.

Shoplifitng (Theft Under $5,000) Charges

What is theft? We all generally understand that theft is taking something that doesn't belong to you without the permission of the owner of the property.

Is it theft if I steal from someone who doesn't legally own the property I took? A theft can occur even when the property you took legally belonged to someone else. Any person having a property interest in an item taken can make a theft allegation.

There are many different types of theft. The most common type is shoplifting- or theft from a retail store. Shoplifting is a special kind of theft - often impulsive, sometimes compulsive. You don’t need to be embarrassed. It happens to all kinds of people.

The Crown Attorney in Ontario generally treat this type of theft less seriously than other types of criminal charges. Generally a shoplifting allegation is considered to be on the lowest end of the criminal law spectrum- with murder at the opposite end of the spectrum. If you have been caught shoplifting, you may be able to avoid a criminal conviction without even going to trial if you are a first time offender. In many Ontario cities including Toronto, people charged for the first time may be eligible to have the charge "diverted" from the court system resulting in a withdrawal of their criminal charges.

How can I get my theft charge diverted? Each courthouse in Ontario has a different diversion program and eligibility requirements differ from region to region. Eligibility for the diversion program is always determined by the Crown Attorney's office. If they deem an theft offence to be of a minor nature (usually a small quantity of merchandise was taken and the property was recovered), the Crown may pre-approve eligibility into the diversion program. Once in the program, the eligible candidate may be asked to complete one of a number of different tasks. In some jurisdictions, a person charged with theft may be required to watch a video on shoplifting. In other jurisdictions they may be required to make a donation to charity or complete a minimum number of community service hours - or both. Regardless of the requirements, the end result is usually the same. Once the diversion program has been completed to the satisfaction of the Crown Attorney, the Crown will recommend to the court that the criminal charge of theft be withdrawn against the accused person. This will result in the accused person maintaining a "clean" record (assuming they didn't have a prior criminal record).

If a person is not pre-screened as eligible for the diversion program, a lawyer may be able to convince a Crown Attorney to reconsider their decision.

Other types of theft, such as a theft from an employer is considered far more serious than shoplifting. The reason the courts and Crown's office treat these cases differently is due to the "breach of trust" that is committed by the employee. It is unlikely that a person charged with a "breach of trust" theft will be eligible for the diversion program. In fact, this type of an offence may even carry a jail sentence for a first time offender depending on the nature and severity of the allegation.

If you or someone you know is charged with theft, speak with a lawyer immediately to determine if you are eligible for the diversion program in order to protect your criminal record. Theft is considered a "crime of dishonesty" by employers and may act as a barrier to future employment in the business, education or health sectors, among others. A theft conviction may also create difficulties for non-residents intending on becoming Canadian citizens.

For more information, visit my website at http://www.yourbestdefence.com/ or call me at 416.297.7200 for a free consultation to discuss your case.

Domestic Assault Charges

A domestic assault can be defined as an assault (see “Criminal Assault In Canada") that takes place between two people who are either currently or formerly dating or in a common law or married relationship. Where an assault takes place between two people who share one of these relationships mentioned above, the mater is labeled “domestic” and prosecuted quite differently by Crown counsel.

According to the “Crown Policy Manual”, a document provided by the Attorney General detailing how Crown counsel are to perform their duties, “Crown Attorneys should prosecute domestic violence offences as vigorously as other serious criminal matters”.

Although not classified differently in the Criminal Code, in many jurisdictions, domestic assaults are separately identified and prosecuted by a special team of Crowns who almost exclusively deal with these types of allegations.

Internal police policies dictate that in almost all situations, the police shall charge a person alleged to have assaulted another in a domestic context, regardless of whether or not independent proof exists such as visible injuries or independent witnesses to the offence. A person’s word is enough to drag another through the criminal justice system.

At the court stage, the Crown will usually carry on with a prosecution in cases where there is a reasonable prospect of conviction. It is of little importance to the Crown Attorney that the person making the complaint does not wish the matter to proceed to trial. In domestic situations, a complainant does not have the choice to “press charges” or not. If a complaint of domestic violence is made, the police will arrest and charge the person accused of the offence and the Crown will likely prosecute them regardless of the complainant’s wishes.

Typically, those charged with a domestic offence are held for a bail hearing, whether or not they are otherwise upstanding citizens without previous criminal involvement. They are also likely to be put on strict conditions of bail which restricts contact with the complainant even if the complainant wishes to have contact with the person charged. The accused person will also likely be required to remain away from their residence, regardless of legal ownership if the complainant continues to reside there. Conditions such as these remain for as long as the criminal charge are before the court.

While it is sometimes possible to change the conditions of bail, the process by which a bail is amended is often lengthy, complex and costly. For details on how to amend a bail condition see “How Can I Change My Bail Conditions”.

There are many ways to defend against an allegation of domestic assault without pleading guilty. Every allegation is different and it is important to discuss with a lawyer what options are available to you before you walk into a courtroom for the first time.

For more information on this, or any other tpe of criminal charge, visit my website at http://www.yourbestdefence.com/ or call me at 416.297.7200 to arrange a free consultation to discuss your specific situation so that I can provide sound legal advice that suits your needs and objectives.