I have heard of charges being stayed because of delay. How does this happen?

The Canadian Charter of Rights and Freedoms is an incredibly important document that helps protect fundamental human rights of all Canadians. Section 11(b) of the Charter relates specifically to the right of an accused person to be tried within ‘a reasonable time’. This section has evolved and been clarified through various cases, including R v Morin, 1992, which stated that the accused has the burden of proving that prejudice resulted because of the delay. It has been agreed, however, that in the case of extreme delay, this prejudice can be assumed. R v Finta, 1994 further shaped this rule, setting out that delay begins at the time the charge is laid and continues until sentencing is complete. The most recent development in the case law regarding trial delay was in R v Jordan, 2016. The Supreme Court in this case defined unreasonable delay as 18 months in the provincial court, and 30 months in the Superior court. 

If a case takes longer than this amount of time from the time charges are laid until the completion of trial and sentencing, it is presumed unreasonable and the burden of proof shifts to the Crown attorney to prove that the delay was justified by unforeseeable circumstances or circumstances out of the Crown’s control. If the Crown cannot do so, the charges must be stayed. All of this being said, before making a decision on unreasonable delay, the Court will take into account court resources, delay caused by the accused or their counsel, complexity of the case, etc. and the judge will make a discretionary decision on whether the delay was reasonable.

If you have been charged with a criminal offence, it is important to seek legal advice immediately in order for a lawyer to review your case and determine any possible legal defences.

Record Suspensions

Record Suspensions (formerly called “Pardons”)

We believe in second chances and we very firmly believe that a past event or mistake should not be held against someone for the rest of their lives. Having a criminal record can affect earning potential, the ability to travel, eliminate the rewards of community volunteering, and can carry social stigma. If you or someone you know has a criminal record, we may be able to assist with the record suspension application to the Parole Board of Canada.

What is a “Record Suspension” ?

A record suspension allows those who were convicted of a criminal offence to have their record kept separate and apart from other criminal records. In order to qualify for a record suspension, one must have completed their entire sentence (including paying any fines and completing probation) and be a law-abiding citizen for a prescribed number of years.

A record suspension removes a person’s criminal record from the Canadian Police Information Centre (CPIC) database. This means that a search of CPIC will not show that the individual has a criminal record or a record suspension

Why is this process no longer called a “Pardon” ?

It is unclear why the Parole Board of Canada changed the terminology from obtaining a “pardon” to getting a record suspension. Perhaps it is because the word “pardon” means to forgive or absolve, while a record suspension keeps a past record separate and apart, it does not completely erase the fact that the record ever existed. Furthermore, a record suspension can be revoked in certain situations such as being convicted of a new criminal offence after receiving a record suspension.

Important Information:

It is important to note that you DO NOT need a lawyer or a paralegal to complete a record suspension application for you. Having a legal professional complete the application does not give your application priority over others and will not accelerate the process. It will also not guarantee you a record suspension or convey a special status on your application. You can absolutely apply for a record suspension on your own. Unfortunately, there is false and misleading information on the internet so if you are going to apply on your own be sure to visit the official Parole Board of Canada site:

https://www.canada.ca/en/parole-board/services/record-suspensions.html

Here you can find all the forms you will require, useful tips, and even a video tutorial to assist you.

Why choose a legal professional to help complete the application?

Even though one can complete a record suspension application on their own, there are advantages to hiring a reputable legal professional to help you complete the application. Many of our record suspension clients find it difficult to stay on track with their application. They start obtaining all the documents they need but then either procrastinate with completion of the application or life just generally gets in the way. We have had people come see us years after they started the process on their own because they have just never found the time to finish it. We have also had some clients that have had their application returned because they are missing information or have obtained the wrong information. Some people find completing the measurable benefit/sustained rehabilitation form challenging and perhaps feel that they don’t have the writing skills to complete this form. We will follow up with you every few weeks to make sure you are staying on track and completing the steps that we cannot complete for you (such as getting electronic fingerprinting done to request your RCMP record). We will conduct a thorough interview with you in order to complete your measurable benefit/sustained rehabilitation form for you and also complete the record suspension application form. We will then check and re-check your application to make sure it is full and compete before finally sending it off to the Parole Board of Canada by courier. If, after reviewing your complete RCMP record and your court information, we determine that you are not eligible for a record suspension, you will not be charged our full fee but rather only pay for the work we have completed to that point.

What are the criteria to qualify for a record suspension?

To see the eligibility criteria follow this link:

https://www.canada.ca/en/parole-board/services/record-suspensions/who-is-eligible-for-a-record-suspension.html

You are not eligible to apply for a record suspension if you have been convicted of more than three offences prosecuted by indictment, each with a prison sentence of two years or more or if you have been convicted of a Schedule 1 Offence (offence involving a child)under the Criminal Records Act. To see schedule 1 of the Criminal Records Act follow this link:

https://laws-lois.justice.gc.ca/eng/acts/c-47/page-5.html#h-135432

If you have been convicted of an offence prosecuted by summary conviction, your waiting period is 5 years following the completion of all portions of your sentence (including probation and fines). If you have been convicted of an offence prosecuted by indictment, your waiting period is 10 years following the completion of all portions of your sentence.

What is involved in the application process?

In order to apply for a record suspension, you must obtain the following documents:
• Your criminal record from the RCMP;
• A local police check from all police services in the areas that you have lived in the past 5 years;
• Your court records confirming your charges and sentences and also confirming that all fines are paid in full;
• Military conduct sheet (if applicable)
• Documents to support your identification such as a drivers licence or passport if you are a Canadian Citizen or immigration documents

You must then complete the record suspension application form and the measurable benefit/sustained rehabilitation form which explains to the Parole Board of Canada specifically how a record suspension would “provide you with a measurable benefit and sustain your rehabilitation into society as a law-abiding citizen” . You must include payment of the fee to apply for a record suspension which is currently $631.00 but will increase to $644.88 as of March 31, 2020. This can be paid by bank draft or certified cheque payable to the Receiver General of Canada or by using the pre-authorized credit card payment form.
Remember, you can complete a record suspension application on your own but if you feel that hiring a professional to complete the application for you is the best choice, make sure you are choosing a reputable business. Read reviews, search the company with the Better Business Bureau and beware of online companies that are using logos that try to trick you into thinking they are official government agencies.

What exactly is a paralegal and what can a paralegal do to help me?

When we ask people what they think a paralegal is, many people conjure up an image of the character Rachel Zane in the USA Network legal drama “Suits”. Like Ms. Zane, many paralegals assist lawyers with drafting legal documents, research, and case preparation; however, in Ontario paralegals are highly educated legal professionals. Only in Ontario can Paralegals work independently without the need for being supervised directly by a lawyer. Paralegals can represent their own clients in defined areas and are licensed and governed by the Law Society of Ontario.

What are the defined areas of practice for Paralegals?

Paralegals can provide legal advice and represent clients in the following areas:

• In Small Claims Court.
• In the Ontario Court of Justice under the Provincial Offences Act.
• On summary conviction criminal offences where the maximum penalty does not exceed six months’ imprisonment.
• Before administrative tribunals.
• Paralegals are eligible to perform certain services in immigration law.
• Alternative dispute resolution (ADR).
• Licensed paralegals are also permitted to practise landlord and tenant law.

Education and Licensing

The Law Society of Ontario has strict accreditation requirements for Ontario Colleges that provide Paralegal programs which includes a field placement requirement. After obtaining a degree or graduate certificate in an accredited Paralegal program, all paralegal licensee candidates must be of good character and pass a 7-hour Law Society of Ontario licensing examination. Once licensed, Paralegals must complete 12 hours of continuing education programs each year and carry errors and omissions insurance.

What a paralegal can do for you?

Facing a legal problem can be frightening and confusing for most people. It is vital for the Canadian justice system to be accessible to all individuals. Unfortunately, many people cannot afford a lawyer and yet do not qualify for legal aid assistance. If your legal issue falls into the area of permissible services as outlined above, Paralegals can provide access to justice by providing high quality legal services that are affordable.
There are many legal situations where only a lawyer will be able to assist you. To help you determine the best legal professional follow this link: https://lso.ca/public-resources/choosing-the-right-legal-professional.

What is self-defence and when can it be used?

Simply put, self-defence is a defence to the criminal offence of assault. If you use force to stop an attacker, self-defence may apply. The burden of proof is on the crown to prove that self-defence is unavailable in the circumstances, rather than on the accused. Section 34 of the Criminal Code of Canada sets out the requirements for the use of self-defence, which is laid out in 3 elements. First, the accused must reasonably believe that force or the threat of force is being used on themselves or another. Second, the purpose of the force must be to protect themselves or others. Finally, the act must be reasonable in the circumstances. Although the availability of the accused to retreat does not necessarily mean self-defence is not an option, it will be taken into consideration by the court when deciding whether the force was justified.

There are both subjective and objective elements of this defence. The court will look objectively at the accused state of mind when the act was committed, taking into consideration that “hindsight is 20/20” and the accused may not have acted in the most appropriate way possible due to the fact that they didn’t have time to think about and assess the situation. The court will look at the specific circumstances in the case before them to determine the accused state of mind and whether they believed the action was reasonable. Therefore, the court will take into account how the accused saw the situation to determine if they truly thought there was a risk, and whether they believed the action they took was reasonable. The subjective analysis will involve considering whether, in the circumstances, a reasonable person would have reacted the same way. Self-defence can also include the fact that the accused mistakenly thought there was more danger than there was. For example, the accused thought the attacker was armed.

Even in the case of defending your home from an intruder, the use of self-defence can only be used if the amount of force used to deter the intruders was reasonable. Defence from intruders entering your home is found in section 35 of the Criminal Code of Canada, which states that it is not an assault by criminal standards if the accused believed on reasonable grounds that someone was about to enter the property illegally and intends to damage or steal property. However, even if you have a legal right to attempt to deter the intrusion, this does not mean you can do so by any means necessary. Again, the defence is only available if the act committed was reasonable in the circumstances, which will be assessed by the courts.

If you have been charged with assault, it is important to seek legal advice immediately in order for a lawyer to review your case and determine any possible legal defences.

A friend or loved one has been charged with a criminal offence and asked if I will be a surety. What does this mean?

A surety is someone who comes to court and commits to supervise an accused person while they are out on bail. Typically, a surety is an adult Canadian citizen (or permanent resident), and usually does not have a criminal record. A surety should be someone with regular contact with the accused, and that lives nearby. Sometimes, an accused is required to live with a surety as part of their release conditions. In deciding whether to allow you to be a surety for someone, the court will take into account many considerations, including how long you have known the accused.

Agreeing to become someone’s surety is a serious commitment to make, and should not be taken lightly. Being a surety involves being partially responsible for a person charged with a criminal offence. The court will determine whether you are eligible to be a surety, taking into account your assets, as well as your personal character. You must have enough assets to cover the bail amount, even though you may not be required to deposit the entire amount. You may be questioned, or have to testify in court as to your eligibility to be a surety. You may also be required to deposit or pledge a sum of money to the court which will be forfeited if you fail in your duties as a surety.

Some of the duties of a surety include ensuring the accused attends all court appearances and making sure the accused complies with their release conditions. As a surety, you are required to phone the police and report the accused if they are not complying with their conditions. If you fail to report it, you may be removed as surety and may forfeit the money pledged.

If you have fully thought out the decision and wish to be a surety, you should have a plan prepared for how you will ensure the accused will follow their conditions should the judge or justice of the peace ask you. You should also be prepared to be a surety for the accused for a substantial period of time, as the court process is lengthy. You could be responsible for being a surety for the accused for months or even years. You can, however, remove yourself as surety without giving reason by attending at court and requesting to be removed. The accused will then either be held in custody or will need a new surety.

What happens if I miss my court date?

Following your arrest and after being charged with a criminal offence, you will be given a first court date. At the London courthouse, this will be in courtroom number 5. As soon as possible following you release, you should contact a lawyer to arrange a meeting to discuss your file. If you have not met with and retained a lawyer either privately or through legal aid, you will need to attend at your court appearance on the date specified. If you do not attend on that day, you may receive a new criminal charge of failing to attend. If you have not yet had time to meet with a lawyer prior to your first court date, you may attend at the courthouse yourself and speak with duty counsel who will assist you. You may then request an adjournment to allow you to select and retain a lawyer.

If you have missed a court date, you should get in touch with legal counsel immediately to try to rectify the situation. After you have hired a lawyer and signed a designation of counsel, your lawyer is permitted to appear on your behalf in court, and if the court date is missed for any reason you will not be penalized. This is why, as soon as you have been charged with any criminal offence, it is important to contact a lawyer as soon as you can.

If my partner doesn’t wish to proceed with charges of domestic assault, do I still need a lawyer?

The consequences of a criminal record can be huge, and unfortunately, even if you are innocent, if you have been charged with a criminal offence it is always recommended that you seek legal advice. Domestic violence allegations run a broad spectrum, and include any act against a partner or relative – including damage to their property or joint property. Due to the nature of domestic charges and the circumstances surrounding them, there are very strict guidelines on how to deal with them. Crown attorneys are only allowed to withdraw the charges on very specific occasions. The victim in a domestic assault case does NOT have the choice of whether their partner is charged with an offence. Once an incident is reported to police, it is mandatory that a charge be laid. This is to protect vulnerable people in a dangerous and violent domestic situation who may otherwise be pressured not to proceed with the charges.

Typically, immediately following a charge for a domestic related incident, the bail conditions (or conditions of release) of the accused will include an order not to associate with the victim. This means that they may have to find another place to live, and may even be prevented from seeing their children, regardless of whether the partner wants the charges withdrawn. This is another reason it is crucial to seek immediate legal advice, so that release conditions can be examined and potentially altered. Without varying the release conditions, a breach can result in another criminal charge.

If you have been charged with domestic assault or any other criminal charge, it is important to seek legal advice as soon as possible. If you are in need of assistance, please call to set up an appointment.

If I have been charged with a criminal offence, will I still be able to travel?

A criminal record can affect many aspects of your life, and travel is no exception. Every country has the discretion to refuse entry to an individual for any reason they choose, so it is difficult to say with certainty whether you may have issues if you have ongoing criminal matters. For countries for whom tourism is a large part of their economy, they may be more willing to allow entry despite criminal charges, but other countries may be more strict on who they allow in.

If you have been convicted of a criminal offence, you should talk to the embassy and consulate of the country you wish to visit in order to determine their entry requirements. To gain entry into Canada, for example, officials will equate the offence to one listed in the Criminal Code of Canada, and use that to determine whether they will allow entry. A person is likely to be denied entry to Canada if they have been convicted of one of the following offences: assault, impaired driving, resisting arrest, possession, trafficking, or fraud, although ANY criminal charge may result in a denial of entry. Similarly, when traveling from Canada to another country, the officials will examine the offence, looking at a number of factors including severity of the offence and how long ago it was committed.

For travel to the United States, you may apply for an entry waiver, which is a process that can take between 6-12 months and consist of completing forms, submitting fingerprints, and supplying a record of your offence committed in order to gain advanced permission to enter the country for a specified number of years. If you have contacted the embassy of a certain country you wish to visit and have determined that you will be allowed entry, it is still best not to book a flight that connects through the US to avoid potential problems. Unless you have an entry waiver or have already spoken to US customs and border protection to confirm you will be allowed entry, booking a direct flight to the country you wish to travel is the ideal route.

Even if your matter is ongoing and you have not yet been convicted but have been charged with an offence, you may still encounter problems with travel. Once you have been fingerprinted and photographed, even if the charges were later withdrawn, the US border protection has access to that information, so a destruction of your records is highly recommended.

When are the police allowed to pull me over in my vehicle?

The Highway Traffic Act provides police with the power to pull over any motor vehicle during the course of their duty in order to achieve public safety. This means that an officer is allowed at any time to pull over any vehicle in order to check for a valid license and/or insurance on the vehicle. When signalled to pull over, drivers are required to do so immediately and are not permitted to leave until advised by police. After being pulled over, the officer is allowed to request license, registration, and insurance documents for the vehicle and driver. The officer is also entitled to inquire about the ability of the driver to properly operate the vehicle, such as asking whether they have consumed alcohol prior to driving. Although you are not required to answer any further questions, it is always advisable to be pleasant and cooperative when dealing with the police.

Although the police are not allowed to search your vehicle when they stop you, they ARE allowed to look in your windows, and may use a flashlight if they cannot see (for example at night). The police are only allowed to physically search your vehicle if they have reasonable and probable grounds to suspect that there is evidence in relation to the commission of a crime in your vehicle and that it will be removed or destroyed if they get a warrant. Accordingly, if the officer looks in the window of your vehicle and sees in plain sight anything illegal or something that gives rise to these reasonable probable grounds, they MAY search the vehicle.

Am I able to take back my guilty plea?

When you enter into a guilty plea, you are waiving your right to trial, meaning the crown no longer has to prove your charges beyond a reasonable doubt. Guilty pleas are usually assumed to be valid, particularly if you had legal counsel at the time you entered your plea. When you enter your plea, you are asked specific questions to determine whether you fully comprehend what it means to enter a plea of guilty. If, however, you do wish to withdraw your guilty plea, it is now up to you to prove to the court that you should be allowed to do so. Only under very limited circumstances will the court allow you to withdraw a guilty plea.

There are only two ways a judge will allow a withdraw of a guilty plea:  if it is invalid, or at the judge’s discretion. The elements of a valid guilty plea are that the plea was voluntary, unequivocal and informed. In order for a court to set aside a guilty plea, one of these elements must be missing. When assessing whether the plea was valid, the court will look at a variety of factors including whether you were enticed or coerced in any way, whether you were under the influence of any substance that may impair your ability, whether you had previous experience with the justice system, if the judge asked all the questions necessary to enter a guilty plea, whether you have any mental health issues that would hinder your understanding, whether you expressed any hesitation with the charges, and whether there was a language barrier.

A guilty plea can also be withdrawn where it would be a miscarriage of justice not to do so. A situation where the judge can use their discretionary power to grant a withdraw of a plea includes where the accused has been given wrong legal advice, or where the accused could not be convicted of the offence based on the admitted facts.

It is important that you seek legal advice before entering into a guilty plea to make sure you are fully informed and understand the consequences of doing so. A withdraw of guilty plea is rarely granted, so it is always best to consult a lawyer before pleading.