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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Defending Criminal Mischief Charges in Toronto, Ontario

Criminal Mischief Charges

This article is a brief and general overview reviewing legal information about criminal mischief charges in Toronto, Ontario. Those looking for advice on mischief charges should consult a criminal lawyer.

What is mischief?
The definition of mischief is found in the Criminal Code at section 430. Generally mischief occurs when a person does any of the following:

(a) destroys or alters property;

(b) renders property dangerous, useless, inoperative or ineffective;

(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or

(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

What is the difference between a charge of mischief under $5,000 and mischief over $5,000?

If the value of the damaged item exceeds $5,000 dollars, the crown attorney may seek an increased punishment of up to ten years in jail. Otherwise, the charge of mischief carries a maximum penalty of two years in jail. It is important to note that most mischief convictions will not result in any jail time.

What if the damage was caused accidentally?

It is an express requirement of the Criminal Code that the person who does the act alleged to constitute the mischief act “wilfully”. An unintentional or accidental act will not meet the standard of willfully damaging property sufficient to trigger criminal consequences.

Can I be convicted of mischief for damaging my own property?

In law, a person may damage something that is wholly owned by them as long as there exists no intent to defraud. This is not considered mischief as the charge relates specifically to damage of property owned wholly or in part by someone other than the person causing the damage.

In a domestic context, a person may attract criminal liability for mischief if they have damaged property jointly owned by both spouses. However, a person who believes that he or she had the legal right to damage property as a result of a mistaken belief in sole ownership is not guilty of mischief in respect of damage to that property.

Will I have a criminal record for intentionally damaging somebody's property?

Depending on the property damaged, the circumstances of the offender and the offence alleged, it may be possibly to negotiate with the Crown to withdraw a criminal charge of mischief in exchange for reimbursing the victim for the damage caused (this is called "restitution"). Often times, paying restitution may result in a withdrawal of the criminal charge.

Even if the Crown Attorney is not willing to withdraw the charge, paying restitution will act as a significant mitigating factor at the time of sentencing before the judge.

It is important to remember that every allegation of mischief is a fact specific inquiry. Consulting a lawyer will assist you with identifying potential defences to this type of allegation. Call me at (416) 297-7200 for a free consultation about your case.

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Uttering Death Threats or Threatening Bodily Harm

Uttering Death Threats or Threatening Bodily Harm

This article is a brief and general overview reviewing legal information about uttering threats in Toronto, Ontario. Those looking for advice on uttering threats charges should consult a criminal lawyer.

What is the definition of a threat?

The definition of uttering threats is found in the Criminal Code at section 264.1. Generally anyone can be charged with uttering a threat if they utter, convey or cause any person to receive a threat:
(a) to cause death or bodily harm to any person;
(b) to burn, destroy or damage real or personal property; or
(c) to kill, poison or injure an animal or bird that is the property of any person

What if the threat isn't said directly to the intended target, but to a third person?

The accused need not utter the threat directly to the intended victim to be found guilty. Furthermore, when the accused does not utter the threat directly but rather threatens to harm the intended victim to a third person, it is not a valid defence to argue that the accused did not intend that third person to communicate the threat to the intended victim for the crime to be established. Indeed, it is not even necessary for the intended victim to be aware of the threat in order to be found guilty of the offence.

What is required to establish a threat in law?

The Crown must prove that the accused knowingly made the threat and that he/she intended the threat to be taken seriously so as to produce a reaction of alarm or fear in the mind of the recipient.

What if the recipient of the threat did not take the threat seriously?

In law, all that is required is that the person making the threat intended the threat to be taken seriously. The fact that the person receiving the threat was not intimidated or scared does not constitute a defense to the charge of uttering threats.

What if it was threat was impossible to carry out?

Even in a situation where the accused makes a threat he/she could not carry out i.e.: " I will drop you from the top of the C.N. Tower", he/she may still be found guilty of the offence. The central focus for the Judge in deciding whether or not a threat was made will be on the maker's intention when the words were uttered (was it meant to be taken seriously so as to produce a reaction of alarm or fear in the mind of the recipient) - not on the present ability to carry out the threat.

It is important to remember that every allegation of threats is a fact specific inquiry. Consulting a lawyer will assist you with identifying potential defences to this type of allegation. Call me at (416) 297-7200 for a free consultation about your case.

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Sexual Assault Charges - Toronto, Ontario

Criminal Sexual Assault

Sexual Assault is a serious crime in Canada. The mere stigma of being accused of sexual assault can irreparably damage a person’s reputation. This article is a brief and general overview of the law as it relates to the criminal charge of sexual assault in Toronto, Ontario. Those charged with sexual assault should consult a criminal lawyer.

Definition of Sexual Assault
Sexual assault is defined as an assault which is committed in the circumstances of a sexual nature such that the sexual integrity of the victim is violated.

Determining whether an assault is "sexual in nature"
To determine if an assault is sexual in nature, the court looks at the part of the body being touched, the nature of the contact, the situation in which it occurred, the words and gesture accompanying the act, and all other circumstances surrounding the conduct including the motives of the accused person.

Definition of Sexual Assault
Section 265 of the Criminal Code of Canada outlines the offences of assault and sexual assault as follows:

A person commits an "assault" when:

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
obtained where the complainant submits or does not resist by reason of the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
(3) Where the accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

Was there Consent?
A central issue in most sexual assault cases is whether or not the sexual activity in question was consensual between the parties. Consent is the voluntary agreement of the parties to have engaged in the sexual activity.

Lack of Consent
Consent will not exist in any of the following situations:
(a) where the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity by virtue of the complainant's mental state at the time (i.e. intoxication, mental illness, etc.);
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity;
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the conduct; OR
(f) The complainant is under the age of 16 (Note: this is subject to the "close-in-age exception," meaning 14- and 15-year-olds can have sex with someone who is less than five years older.)
Mistaken Belief in Consent
An accused may be acquitted of sexual assault even where there existed no consent between the parties if the accused held an honest but mistaken belief that the sexual activity was consensual.

An honest but mistaken belief in consent can be raised if the accused establishes that the complainant affirmatively communicated consent through the complainant's words or actions.

However, the accused honest but mistaken belief in consent cannot arise from any of the following scenarios:

(i) self-induced intoxication;
(ii) recklessness or wilful blindness; or
(iii) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Was Consent Given?
In order to determine if consent was given, the Court will look at the parties’ words, conduct, and reasonable steps. Words and conduct are important when trying to establish if the complainant consented to the sexual contact. The Court will not accept a complainant's silence or passivity as a form of consent; in other words, implied consent is not a defence to criminal sexual assault. If the Court finds that the accused continued sexual conduct after the accuser indicated "No" through words or conduct, the accused’s actions may be considered reckless, and he or she could be convicted under the Criminal Code of sexual assault.

Undoubtedly, the issue of consent can be a grey area, as parties’ perceptions of events may vary a great deal. The Court will look at consent from the complainant's point of view.

Furthermore, the Criminal Code requires that the accused must show that under the circumstances, he or she took reasonable steps in order to ascertain the accuser’s consent. Courts have maintained that not all reasonable steps to ascertain consent need be taken; but rather that efforts were made to take some reasonable steps would be sufficient.

Of course, just taking “some reasonable steps” alone will not prove consent, but even if the accused thought consent was given, and it turns out that it was not, taking some reasonable steps may provide the defence with some creditability, as it shows the judge or jury the accused thought what a reasonable person would have thought under similar circumstance, i.e. that consent was given.

Limits on Attacking a Complainant's Credibility
There was a time when a person accused of sexual assault was permitted to question the complainant in a sexual assault case about their past sexual history as a way of attacking the complainant's credibility. This is no longer permitted by the courts. If a person accused of sexual assault wishes to ask questions about an accuser's prior sexual activity, a special application must be brought before the trial judge. The Court may allow an accused person to ask questions about a complainant's prior sexual history, psychiatric or medical records as evidence that their credibility should be questioned; but this will only be permitted in very limited circumstances.

Sentencing and Punishment for Sexual Assault
If an accused person is found guilty and must face sentencing on a sexual assault charge, the sentence could range anywhere from no time in jail at all to a maximum of 18 months or 10 years depending on whether or not the crown proceeds on the sexual assault by "summary conviction" or whether they proceed by "indictment". How a crown chooses to proceed is entirely within their discretion. There are pros and cons to both procedures.

Since a sexual assault allegation can cover a wide range of assaultive behavior from groping someone to full intercourse, each case must be considered individually in order to assess the appropriate punishment.

In sentencing, a judge will consider a host of factors when it comes to determining an appropriate punishment, such as the offender criminal record, the personal circumstances of the offender, the circumstances of the case, as well as the brutality or lack thereof regarding the assault. Each case is unique.

If you, or someone you know if facing a sexual assault charge, you should immediately contact a lawyer to discuss the best way to successfully defend against the allegations. For a free consultation, I can be reached at (416) 297-7200.

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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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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.

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.