Fail to Appear for Court

This article is a brief and general overview reviewing legal information about failure to appear charges in Toronto, Ontario (aka. What happens when I miss my court date?). Those looking for advice on this or any criminal charge should consult a criminal lawyer.

Generally, it is a criminal offence to fail to appear in court as directed by a judge or to fail to appear for fingerprints and photographs as directed by a police officer pursuant to a valid court order.

What if I forgot my court date? Am I still guilty of failing to appear?
No. The act of failing to appear for court or at the police station for prints and photographs must be intentional. Therefore the crown must prove that you KNEW you had to attend and you chose not to. Forgetting your court date (even if you were negligent by not writing the date down etc.) will not meet the standard necessary for a conviction.

What If I intended to miss my court date but I had a really good reason for doing so?
In some circumstances, the court will accept a lawful (read: very good) excuse from an accused person as to why they missed their court date. Attending a job interview or being “hung over” are not likely considered lawful excuses. A lawful excuse usually requires that it would have been impossible for the accused person to attend the appearance. An example of a lawful excuse might be that the accused person was in the hospital with a significant medical condition that prevented them from being able to attend the court appearance. Another example of a lawful excuse may be that the accused person was in jail on another charge and couldn’t physically attend the appearance as required.

What happens if I just realized that I missed my court date? What do I do now?
What usually occurs when a person misses court is that the judge issues a warrant for their arrest. In the circumstance when the person misses their appearance for photographs and fingerprints, the police will issue the warrant.

Is it possible to have the warrant for my arrest for failing to appear cancelled?
It is possible (depending on when the warrant was issued) to have the warrant cancelled. Usually after two or three days, it will no longer be possible to have the warrant cancelled by the judge. In this instance, the defence lawyer will make arrangements to have the accused person surrender themselves to police to have the warrant processed.

If I surrender myself, will I still be charged with failing to appear in court?
Not necessarily- in some instances, a defence lawyer may be able to convince the police officer that the accused person simply forgot the date of their appearance and that the charge of failing to appear in court should not be laid.

What will happen to me after I surrender myself to the police for failing to appear?
In almost every instance, a person charged with failing to appear will be required to attend the police station for processing and will then be brought to the courthouse for a bail hearing. If a charge of fail to appear has not been added by the police officer, the accused person will likely be released back on the terms of their previous release associated to their underlying offence (for which they failed to appear). In other cases an accused person may have to go through the process of obtaining bail on the new charge and also risk the possibility of losing their bail on the underlying charge for which they failed to appear.

What are the penalties for failing to appear in court?
In some cases, it is possible to be found guilty of failing to appear and not receive a criminal conviction. However, many judges will impose jail sentences up to a maximum of six months for the offence. Regardless of what the penalty is, a finding of guilt for failing to appear in court will be a significant factor at any future bail hearing when deciding whether or not the accused person should be released on bail.

If you or someone you know has been charged with failing to appear for court, you should immediately contact a criminal lawyer to determine your best defence to this type of criminal charge. I can be reached for a free consultation at 416.297.7200.

Mother cleared in gang probe

Crown withdraws more accusations against those arrested in raid on alleged MS-13 members

Jan 27, 2009 04:30 AM
BETSY POWELL
COURTS BUREAU

The Crown has withdrawn more than 30 drug-related charges against a young mother arrested as part of last year's high-profile takedown of suspected MS-13 gang members.

Rosa Martinez-Cabrera, 24, spent more than five months in pre-trial custody, leaving her baby in the care of her in-laws, before she was released last fall.

Yesterday, the woman shook her head and declined to comment as she pushed a baby stroller outside the Old City Hall courtroom.

"I should sue," she said to her lawyer, Daniel Brown.

Brown said the circumstances are unfortunate, since Martinez-Cabrera spent "close to six months in pre-trial custody, a young child was taken out of her arms, and they fought her at all stages for her release."

Then, in the end, the Crown "realized they didn't have a case."

Her boyfriend, Douglas Moreira, 28, yesterday pleaded guilty to one count of possession of cocaine for the purpose of trafficking.

Judge Robert Bigelow sentenced Moreira to 24 months in prison, but gave him two-for-one credit for the eight months he had spent in custody, so Moreira must serve an additional eight months.

Both Martinez-Cabrera and Moreira forfeited claim to $30,000 seized during the raids; Brown told court there is no admission the money belonged to either of them.

Federal prosecutor Antoinette Issa also withdrew charges against another co-accused yesterday.

Now only one accused remains in what defence lawyers say is the embarrassing collapse of the case that made headlines in 2008, when Toronto police said they had taken steps to dismantle a local faction of the MS-13, one of the world's most vicious gangs.

"Gang investigators have stamped out the first wisps of smoke signalling the arrival of a notoriously violent street gang with U.S. and Central American roots," said a Toronto police news release.

"It was a lot more talk than actual show on the part of the police," said Brown.

"Where is it? Where is the gang they brought down? ... This was police officers rushing an investigation here, far below the standards that could possibly meet a conviction for participating in a criminal organization."

In a series of pre-dawn raids last June, Toronto police arrested 17 people they suspected of belonging to the Central American criminal organization.

Five were charged with plotting to kill a jail guard at Toronto West Detention Centre, but last fall the Crown stayed the murder conspiracy charges against four of the accused.

The Crown has also stayed the charges against the four of uttering death threats and belonging to a criminal organization.

Report laments legal aid snag

Report laments legal aid snag

Most cases go to junior defence lawyers who lack experience, creating 'vicious circle,' authors find

Nov 29, 2008 04:30 AM

Tracey Tyler
Betsy Powell
Toronto Star

The defence of people charged in some of Ontario's biggest criminal cases – as well as millions in public money – is being placed in the hands of unseasoned junior lawyers, some with less than four years experience, a new report says.

More than half of all legal aid certificates issued in complex criminal cases are going to lawyers who have been practising fewer than ten years and lack the judgment needed to conduct trials in a focused manner, according to the report.

The report was released yesterday at a Queen's Park news conference by Attorney General Chris Bentley. It's aimed at moving large cases through the justice system faster and avoiding the fate of a recent corruption trial involving Toronto police officers, which collapsed this year after a decade in the courts.

Bentley was joined by the report's authors, Patrick Lesage, a former chief justice, an
Michael Code, a University of Toronto law professor who once served as assistant deputy attorney general.

After combing through data from the files of Legal Aid Ontario, Lesage and Code found approximately 28 per cent of defence work in big cases funded by legal aid is performed by lawyers with less than four years experience.

At the same time, the legal aid plan is attracting fewer and fewer senior lawyers. Most are unwilling to commit themselves for months or years to cases at rates that don't cover their overhead. The top rate is about $92 an hour.

"We appear to be trapped in a vicious circle: the longer criminal trials become, the less likely it is that leading counsel will agree to conduct them on a Legal Aid certificate; and yet having leading counsel conduct the defence in these cases is one of the solutions to the overly long trial," Code and Lesage write.

Among their 41 recommendations is a call for "enhanced fees" in complex cases, using criteria so restrictive that only "the most able counsel" qualify. Frank Addario, president of the Criminal Lawyers' Association, applauded the general principle of enhanced tariffs, arguing that paying more to lawyers will prove "revenue-neutral."

"What's paid out will be recouped over and over by savings on everything else that drives up the cost of complex cases," he said.

But while Bentley said both he and Premier Dalton McGuinty are determined to have "a faster, more effective criminal justice system," he made no promises yesterday beyond a vague pledge to get legal aid to "a better place." He's focused his attention on less expensive changes, including moving Crown attorneys into police stations to advise police in the early stages of a case.

Doing so, said Bentley, addresses a recommendation by Lesage and Code that police and prosecutors work more collaboratively on issues, including the disclosure of evidence to defence lawyers.

That was one of the troubling areas cited by a judge in the police corruption case that precipitated the report. In staying charges against six drug-squad officers, Justice Ian Nordheimer quoted a letter from RCMP Chief Superintendent John Neily, imploring the Crown to help manage the mountain of documents in the investigation. He got no response. Nordheimer blamed the Crown for much of the delay that led to the stay. The Attorney General has appealed.

Bentley said yesterday Crowns will be assigned to police stations in Toronto, Peel, Ottawa and Windsor.

But some defence lawyers involved in large-scale prosecutions are skeptical.

"The Crown and police can't be any closer than they already are," said defence lawyer Richard Posner. "Police have access to Crown attorneys around the clock."

Daniel Brown said special prosecutors have been involved in the earliest stages of several gang projects, yet Ontario is still experiencing lengthy trial delays.

Inmates win court food fight

Inmates win court food fight
Durham police agree to augment prisoners' lunch during hearing after lawyers launch complaint

Nov 18, 2008 04:30 AM

Betsy Powell Courts Bureau

"I'll have the Chicken Neptune."

That was the joking response of a prisoner in an Oshawa courtroom yesterday after Durham Regional Police Service reluctantly agreed to feed seven inmates more than a granola bar and juice box during lengthy court proceedings.

But the issue is no laughing matter, say the defence lawyers who complained their clients would be too hungry to follow their preliminary hearing, scheduled to begin today and last five weeks.

In September, defence lawyers, led by Daniel Brown, brought an application in an Oshawa court asking Justice David Stone to order Raymond Martin and six co-accused – who face a variety of drug offences – be provided additional food and drink in order to "meaningfully participate" in their preliminary inquiry.

But before the application could be heard yesterday, Kevin Inwood, a lawyer for Durham police, announced the force will add a sandwich and apple to the daily menu of the seven prisoners in order not to delay or disrupt the proceedings.

The force "wants to make it very clear they maintain they are not required to do so," Inwood told court. Durham police believe it is the province's responsibility to buy prisoners lunch and it is refusing despite agreeing recently to pay all court costs by 2012, he said, adding the cost "ought not to be borne by the taxpayers of this region."

Since August, inmates of Durham Region's five courthouses have received one granola bar and juice box at lunch.

The force changed the menu "to save staff time, reduce waste, provide a more nutritional meal and save money," an internal media briefing note said.

Previously, the inmates were given a cheese sandwich on white bread and can of pop.
While the lawyers declared victory yesterday and withdrew their application, they said the larger issue looms in courthouses across Ontario where penny-pinching policies are taking a bite out of food budgets.

"This concession by the Durham police is only in this particular case," said Brown. "Are we going to have to waste court time in future cases to litigate the same issue over and over again? I think the answer is yes."

The prisoners receiving the extra food are spending all day in court in addition to being driven for an hour to and from Central East Correctional Centre in Lindsay.

Before the deal was agreed to in court, Stone said he had no authority to order the province or Durham to provide more food. But he said if at any time he found any parties weren't "present" due to a lack of food, he could shut down the court.

Durham judge reconsiders prisoners' lunch menu

An Oshawa judge has ruled that seven inmates being tried on drug conspiracy charges will have to be given more food during the day while they're in court.

The decision came after defence lawyers argued their clients have a hard time staying alert during proceedings because of a slimmed down prisoner menu that Durham Regional Police implemented this past summer.

Detainees usually get a full breakfast at around 5 a.m. and then dinner at 7 p.m. Inmates used to get a sandwich and a pop halfway during the day but now all they get is a granola bar and a juice box.

"It's pretty bad when you have to starve and go to court," one prisoner told CTV Toronto as he was being hauled away.

The prisoners are held in a provincial jail and have their cases tried in provincial court but security is handled by Durham police. Durham police are expected to feed the inmates but recently, their food budget has dropped from $3 to $1 per person.

Defence lawyers say prisoners need to concentrate on their case when they go to court but that becomes hard to do when their stomachs are growling.

Lawyers have taken to asking for court delays until their clients are properly fed.

"You can't order either one of the parties to provide food but you can halt the proceedings until food is provided," said defence lawyer Daniel Brown.

Durham police officials say the prisoners' budget was cutting into their operation.

"Bear in mind, (the) $90,000 we spent on lunches last year, that's one policeman on the street," Supt. Michael Ennis told CTV Toronto in September.

Durham police argue the lunch tab should be the responsibility of the corrections ministry, not them.

Officials say the seven inmates who were granted a larger lunch menu have been segregated because of fears the decision would cause riots by other prisoners who were not granted the same consideration.

With a report from CTV Toronto's Austin Delaney

How to Appeal a Criminal Conviction or Sentence in Toronto, Ontario

How to Appeal a Criminal Conviction or Sentence

This article is a brief and general overview of legal information about criminal appeals in Ontario. It is not intended to be used as a substitute for proper legal advice. Those looking for legal advice on the time limits or process of filing an appeal with the court should consult a criminal lawyer.

What is an appeal?
In a nutshell, an appeal is a review by a higher court to determine the correctness of what happened at the trial and whether the trial was conducted fairly. Usually, appeals are based on the judge at the trial making a mistake in how he or she applied the law to the facts of the case. However, in some circumstance, an appeal can also be used to review whether the judge properly considered the evidence put forward at trial or whether the evidence was sufficient for a conviction. An appeal can be brought against a conviction or sentence.

What is the difference between a conviction appeal and a sentence appeal?
A conviction appeal challenges whether the person should have been found guilty or not guilty at trial. A sentence appeal challenges the type or length of punishment the Judge imposed after a person has been found guilty. A person seeking to appeal their case may chose to appeal both the conviction and sentence at the same time.

There are two types of appeals for criminal matters:

Summary conviction appeals
A summary conviction appeal is a review of a decision of a provincial court judge where the Crown has made the decision to proceed by way of a summary trial or the Criminal Code requires that trial proceed summarily. The Crown will often choose to proceed summarily where the case is less serious or they are seeking a lower penalty at the end of the trial. For most summary conviction cases, the maximum penalty is six months in jail (some offences have a maximum sentence of 18 months in jail). Summary conviction appeals are brought before a single judge at the Superior Court of Justice in the jurisdiction where the trial took place. For instance, if the trial took place in Toronto, the appeal would be heard at the Superior Court of Justice in Toronto, at 361 University Avenue.

Indictable appeals
For more serious matters, the Crown may choose to proceed by Indictment or the Criminal Code may require the offence proceed by way of Indictment (for instance, murder, robbery or kidnapping). In Ontario, these appeals take place at the Court of Appeal for Ontario in Toronto regardless of where in the province the trial took place. Appeals to the Ontario Court of Appeal are heard before a panel of three judges.

What are the time limits to appeal?
For both summary conviction appeals and indictable appeal you can start an appeal after you have been convicted. Appeals have strict time limits. The time limit is normally 30 days from the date on which you are sentenced. For many summary conviction matters or guilty pleas, the conviction and sentence happens on the same day. It is possible to bring an appeal outside the 30 day period, however, you have to seek special permission from the appeal court.

Is it possible to get bail during my appeal?
It is possible to get bail while your appeal is before the Court. This is called bail pending appeal. Bail pending appeal requires a separate motion to be brought before the Court hearing the appeal. The Court must be satisfied of three things:
1) There is a possibility that the appeal will be successful;
2) It is not contrary to the public interest that the person be released pending appeal (this a very significant factor for offences that result in a long jail sentence); and
3) That the person will surrender themselves on or before the date of the hearing.

Is it possible to suspend other Orders, such as a driving prohibition, during my appeal?
It is also possible to have ancillary court orders imposed as part of the sentencing be suspended pending the determination of the appeal; for instance, the mandatory year long driving prohibition on convictions for impaired driving. Fines, restitution, forfeiture of property or probation orders can also be suspended pending appeal. Like a bail pending appeal, this requires a separate motion before the Court that will hear the appeal.

How are appeals conducted?
An appeal is not a re-trial of the case. The evidence that was heard at trial is often not in dispute. All the evidence heard by the witnesses at trial (transcripts of testimony) and any physical evidence entered at trial (exhibits) are reproduced for the appeal court. The issue on appeal is whether the judge applied the law properly and arrived at a decision he or she was entitled to make. An appeal court does not under normal circumstances hear witnesses or receive any new evidence. The appeal court will also generally not interfere with a judge's findings of credibility (i.e. whether the trial judge believed or did not believe a witness). The court process consists of the lawyers making legal arguments (submissions) as to whether the decision of the judge at trial was correct in how he applied the law to the evidence before him.

What is a factum?
The "factum" is a fancy name for a document that briefly outlines the facts of a case and the legal arguments that are going to be made during the hearing of the appeal. Most of the work done on appeals is done outside the courtroom. The appeal court requires that a full outline of all the arguments and the law that the parties are going to rely upon be prepared in advance of the hearing and filed with the court.

Is it possible to put new evidence before the appeal court?
It is possible for the appeal court to hear new evidence on appeal; however, the ability to put new evidence before the court is very limited. The appeal court can consider new evidence if it was not available at trial through the trial lawyer's due diligence, it is significant and reliable evidence and it could have affected the verdict if it was before the trial court.

What are some of the results from a successful appeal?

a) Order a new trial:
A successful appeal can result in the judge (or judges) ordering a new trial if the appeal court is convinced that the judge at trial made a legal error or the trial was not conducted fairly. The appeal court will set aside a conviction and order a new trial before a different judge. It is then up to the Crown to determine whether or not they will re-prosecute the offence. In some cases ,the Crown may decide it is no longer in the public interest to re-prosecute the case again.

b) Order an acquittal:
In circumstances where the appeal court is convinced that the evidence does not support a conviction, the appeal court may set aside the conviction and order that a finding of not guilty, an acquittal, be substituted. This occurs more rarely than a new trial being ordered.

c) Vary the sentence:
If the appeal court is convinced that the sentence imposed by the trial judge was too high or the judge at trial made a legal error during the sentencing, the appeal court may lower the sentence, may order that a sentence be served in the community or may remove any ancillary orders imposed as part of the sentencing (such as weapons prohibitions, DNA orders, fines, restitution or probation).

What does it cost to appeal?
The costs to appeal will vary depending on whether it is a summary conviction appeal or an indictable appeal, the complexities of the legal issues and the length of the trial. For instance, appeals that require fresh evidence are often more expensive. There are also significant costs up front to pay for the transcripts of the trial.

Every word that is spoken in open court is recorded by a court reporter - whether it is evidence from witnesses or legal argument made by the lawyers. The appeal court requires copies of the transcripts be filed with the court to assist them in deciding the appeal.

For conviction appeals, usually the entire transcript of trial is required. In the case of sentence appeals, the court is prepared to decide the matter on less than a complete record, often supplemented by an agreed statement of facts between the defence and the Crown. This often results in less costs.

For indictable appeals, the cost of transcripts alone are $3.75 per page (for five copies) or approximately $500 - 600 for a full day of court time; thus a five day jury trial in superior court could cost $2500 to $3000 for the transcripts.

For summary conviction appeals, the transcripts are usually shorter but the cost per page is higher at $4.30 per page (for three copies).

If you, or someone you know requires assistance with a sentence appeal or conviction appeal, you should immediately contact a lawyer as the clock may already be ticking on the appeal deadline. For a free consultation, I can be reached at (416) 297-7200.

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