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Defending Criminal Charges

What Is a Criminal Charge?


A Criminal Charge is an allegation by the police/government that a person has behaved in such a way that they deserve to be punished according to law. The most that can be done to any person in Canada is to convict them of a criminal offence. After the conviction, numerous consequences flow, and it is difficult to predict all the consequences in any case, but each one is very negative.


The federal government has created the Criminal Code of Canada, which means that from coast-to-coast, the same charge is prosecuted. There are other federal laws, which include Narcotics Control Act, or the Income Tax Act which also creates a crime. The provinces have authority to create offences, which although they are not criminal, to the person being prosecuted, they are very similar to criminal. An example is the Highway Traffic Act, which is prosecuted in a similar fashion as minor criminal charges (some charges are major, such as murder, called “indictable offences,” with more minor offences in the Criminal Code being called “summary offences”). The Highway Traffic Act, and similar acts, can also have people placed in jail, pay fines, take away drivers licences, and have other long lasting effects. Thus, one should fully understand the nature of the charge before making any decisions as to what to do.


Consequences of a Criminal Charge and Conviction


The Criminal Code is the most onerous legislation in terms of a person being accused. Offences such as murder or terrorism are prosecuted under the Criminal Code. However, other offences which may at first not seem less onerous, such as shoplifting (theft), fraud or harassment, are also in the Criminal Code, and they can result in a criminal conviction.


A person charged is presumed innocent. However, they can be held in custody pending the court proceeding, and have to seek bail (release out of custody to return to the community, but with conditions which can even include house arrest).


If convicted (which also occurs when a person pleads guilty), the consequences start to flow. The conviction can be registered, which means that the person has a criminal record. A criminal record may eliminate a person from some job opportunities, or limit their travel to other countries, as this is a ground for refusal of entry to many countries (the United States uses a criminal conviction to stop some people from entering or flying on their airlines). There can be conditions imposed, such as no contact or not going to certain locations. If conditions are violated, a person has committed another criminal offence. Harsher penalties include fines, restrictions on behaviour or activities, or a person can be incarcerated. There can also be lesser consequences, which are called “discharges.” A discharge may not be treated as harshly as a criminal conviction, but American authorities may choose to treat a conditional discharge (as compared to an absolute discharge) the same as a criminal conviction. These consequences need to be thoroughly understood before any consideration is made to resolve a charge by way of a guilty plea.


Avoiding a Criminal Conviction


Of course, the best way of avoiding a criminal conviction is never being charged. If charged, the best resolution would be that the prosecutor (called “the Crown” in Canada) withdraw the charge. Another positive resolution would be that the charge is “stayed,” which means that the charge is not going to move forward through the system. The grounds for a stay is often that the Charter rights of the accused have been violated, the accused could be not prosecuting in a timely fashion, or the accused being mistreated by the police at or after arrest.


If the case proceeds to trial, the court (usually judge alone, but in some cases with a jury) decides that the person is either guilty or not guilty (there is no actual finding that a person is “innocent,” but in some cases courts have concluded that the person should not have been prosecuted).


To assess whether a person can avoid a conviction, what is needed is for counsel to review the case from the Crown’s point of view (obtaining disclosure which is the background information of how they intend to prosecute) and to compare this to the version from the defence point of view. Although it may take some time to obtain full disclosure, counsel is often able to assess and give guiding comments very early on, that is, immediately after the charge has been laid. Counsel can also recommend how the accused behaved, in terms of further police contacts, whether they should proceed to other interviews, or how they should conduct their lives to avoid further charges or to reduce the chances of being convicted on the charge that they are originally facing. There is no substitute for good legal advice at a very early stage.


Not Duty Counsel, but Private Counsel


Although the government provides “duty counsel” at the courthouse for accused persons to speak with, this is not the same as having your own counsel. Duty Counsel do not consider a person speaking with them as their client. Their job is only to give some commentary at the courthouse, and to perhaps give some assistance. They do not have the full background, nor the time or opportunity to properly investigate. What an accused person should consider doing is engaging private counsel, so that a solicitor and client relationship exists, and the situation and charge is fully investigated. Since this starts with a free consultation, why would an accused person not take advantage of this opportunity?


Cost of Criminal Defence


The defence of a charge starts with the first meeting with counsel. Guidance can be given as to options, potential consequences, and a potential plan for investigation of the case can be discussed. The cost for this meeting at DeRusha Law Firm, starts with a free consultation. Thus, at no charge, some initial thoughts and considerations are available to the accused. Then, and only then, can the accused assess the options of dealing with the charge.


Even if the accused and counsel concluded the best option is to plead guilty, there is argument that can be made about discharges as compared to a conviction registered. There is background information that should be made available to the court about the accused. Argument should be advanced to obtain the least penalty possible. Counsel can assist in this process, the cost sometimes being only a few hundred dollars. There is no substitute for having counsel provide advice and assistance. If a conviction can be avoided, or at least the minimum penalties imposed, it is well worth the cost of the process. The consequences of a conviction can last a lifetime.

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