This criminal defence lawyer wonders if toughening Canada’s criminal laws will do anything other than improve the Conservative government’s image with the law and order constituency.

Six of 10 provinces that were surveyed by the Globe and Mail newspaper this week fear that the Conservative government’s proposed tough crime bills will cost them billions. The financial toll will be the result of the influx of prisoners they are anticipating, and they believe the federal government should help shield the cost.

Specific dollar figures for the cost of the bills have not been released by the government, however, the Parliamentary Budget Officer, Kevin Page, has said that current government estimates are too low.

Opposition critics have been able to use the fact that the bills will cost billions – with no guarantee that they will have a positive net effect — to justify opposing the bills.

The fact that crime rates are falling is another strong reason to query wisdom of the government’s intention.

Public Safety Minister Vic Toews has not yet confirmed that the government will be assisting provinces in paying for more prisons.  According to the government, provincial costs may be trimmed because of a decrease in people in provincial remand centres and more people in federal prisons.   This argument is unlikely to prove true as there are 10 individuals sentenced to provincial penitentiaries for every person who is sentenced to a federal prison.  Longer sentences lead to federal time.

The federal Conservative government has recently announced legislation to eliminate pardons granted to criminals. If the bill, which was introduced on Tuesday, is passed, pardons would be eliminated and replaced with a more restrictive ‘record suspension.’ These record suspensions would be more difficult to obtain and would take longer to have granted. Those convicted of sex crimes against children or those with more than three convictions would be ineligible.

As the current system stands, there is generally a three to five year waiting period for criminals after a sentence has been served depending on the severity of the crime committed.

A pardon actually does not erase a person’s criminal record, but it may assist them in obtaining a job and travelling out of Canada. It is for this reason that opposition parties in Ottawa have said that before deciding whether or not to support the new piece of legislation, they want to examine it closely.

Some opposition party members also criticize the legislation as being proposed too quickly without a proper Parliamentary review; they have argued that a report done by experts would contribute to an evidence-based decision.

Criminal defence lawyers at Auger Hollingsworth are knowledgeable, experienced and available for a free, no obligation consultation when you are in need of legal representation. Contact a criminal defence lawyer at Auger Hollingsworth at 613-233-4529 or at info@ottawalawfirm.ca. Visit us online at: www.criminaldefenceottawa.ca

If you are in Ottawa, Eastern Ontario or elsewhere in Canada, you should beware that people often think, incorrectly, that criminal findings of guilt before adulthood have no impact once a person becomes an adult. A young person’s record does not cease to exist just because they turn 18, and if they re-offend before the “non-disclosure period” has passed, their record can be used in court. Read the full article »

If you have been charged with a criminal offence in Ottawa, or elsewhere in Canada,you should know that there are two ways that your charges may be dropped.

The Crown has the right to withdraw any criminal charge or they may also stay the proceedings.

Firstly, what this means is that before an accused enters a plea in open court, the Crown can completely withdraw any criminal charge. After this has happened though, if the crown attempts to relay the charge, the courts may intervene to ensure that there is no abuse of this process. If this ever happens to you, make sure you discuss it with your lawyer because any decision by the crown to prosecute after a charge has been withdrawn may require a legal application to be brought before the court.

Secondly, as of right at any time before a final judgement is rendered in a case, the crown may also stay the proceedings stopping the prosecution immediately. In this case, the accused can be released from custody and the court has no power to intervene to require the continuation of the prosecution. However, the Crown does have the power to recommence the prosecution after a stay of proceedings has been entered. For this reason, it is better to get a withdrawal of charges.

If you have been charged with a criminal offence, make sure you have a criminal defence lawyer with the knowledge and experience to protect you. Contact a criminal defence lawyer at Auger Hollingsworth at 613-233-4529 or at info@ottawalawfirm.ca

If you are considering defending your charges at trial, Ottawa lawyers at Auger Hollingsworth want you to know that there may be many defences available. One of the more common defences is having an alibi.

Having an alibi is a defence that can be raised if the accused could not have committed the offence because he or she was not physically present at the location of the offence when it occurred. If the court concludes that the accused did not have the opportunity to commit the offence because he or she was elsewhere, the accused may be found not guilty.

If you maintain that you were somewhere else at the time of an offence, it is important that this is discussed privately with an experienced criminal defence lawyer. You may need to interview witnesses and secure evidence to confirm that you were where you say you were, and your lawyer will need to decide how and when to provide the notice of the alibi to the crown.

Usually, the defence is not required to disclose anything to the Crown, but the law suggests that the Crown and police be given opportunity to investigate any alibi defence put forward; if this is not done, the alibi defence can possibly be rejected by the court.

Make sure you have a criminal defence lawyer who has the knowledge and experience to give you the advice you need to protect your legal rights. Contact a criminal defence lawyer at Auger Hollingsworth at 613-233-4529 or at info@ottawalawfirm.ca

Whether or not you are found guilty at a trial will depend on whether the crown attorney can prove a guilty act and a guilty mind.

In order to prove guilt, the crown must prove two parts for every criminal offence.  The crown must prove an act (actus reus) was committed by you and that you had the criminal mental intention (mens rea) to commit the act.  There is no guilty act without a guilty mind.

To prove the guilty act, the crown has to show:

a) an action (or omission of an action)

b) by a person with capacity

c) in a voluntary manner

d) which caused certain consequences.

If there is any reasonable doubt about whether these aspects of the alleged criminal act occurred, the court must find you not guilty.  You do not need to testify and your lawyer does  not have to prove that the alleged criminal act did not occur.  You can remain totally silent because the burden of proof is on the crown.

Sentencing in a Canadian criminal case is a human process and can be one of the most difficult procedures to conduct.  It is very difficult to predict the outcome of a sentencing hearing.

The basic purpose of the criminal law is to protect society and individuals from personal injury and property damage.  The main goal in sentencing a person convicted of a criminal offence is to promote just sanctions which will promote the protection of society and its individual members.  More specifically, the Criminal Code prescribes the goals of sentence to be denunciation, deterrence, separate offenders from society where necessary, rehabilitation, reparation to victims, and to promote offender responsibility.

If you are facing an upcoming sentencing hearing, it is important that you understand and discuss with your criminal defence lawyer how each of these goals will be met.  This is critical because the judge will want to be persuaded that the sentence proposed meets these goals.  You should discuss with your criminal defence lawyer what documents, witnesses or other evidence will be presented in order to satisfy the court that these goals of sentencing will be met.

Ensure that your Ottawa criminal defence lawyer has a full understanding about your background including your education, community involvement, medical history, family support and personal circumstances in your life that may have been present leading up to the commission of the offence.  The sentencing judge will be trying to get a clear picture of you as a person and you will want to assist your criminal defence lawyer in conveying that picture in the best possible light.  You can assist your lawyer by gathering information and reliable evidence about the positive aspects about you and your character.

During the sentencing hearing, the judge can ask the convicted person if they wish to say anything to the court.  You should discuss this aspect of the process with your criminal defence lawyer.

You should also ask your criminal defence lawyer and make sure you understand all of the terms of the sentence your lawyer will ask for and all of the terms of sentence the crown attorney will ask for.  The law states that the sentencing judge does not have to accept the sentence proposed by either the defence lawyer or the crown attorney.  The sentencing judge can impose a sentence more harsh or more lenient that the sentence proposed by either party.

If you have been charged with a serious criminal offence, you may be wondering what defences are available to you.  We have compiled a short list of defences as an overview.  Of course, not every defence is applicable to every case.  Speak to an experienced criminal defence lawyer about whether you have a viable defence to your case.

Alibi:  This is a defence that can be raised where the accused could not have committed the offence because he was not physically present at the location of the offence when it occurred.  If the court concludes that the accused did not have the opportunity to commit the offence because he was elsewhere, the accused may be found not guilty.

If an accused maintains that he was elsewhere at the time of the offence, it is critical that this be discussed privately with an experienced criminal defence lawyer.  This is important because it may be necessary to privately interview witnesses and secure evidence to confirm that the accused was at a location other than where the offence occurred.  It is also important to discuss this privately with an experienced criminal defence lawyer because the lawyer will need to decide when and how to provide the necessary notice of the alibi to the crown.  Although usually the defence does not have to disclose anything to the crown, the law does suggest that the crown and police should be given a reasonable opportunity to investigate any alibi defence.  If this notice is not given, the alibi defence can be rejected by the court.

Provocation:  This is a defence which is commonly misunderstood.  Provocation can only be used to reduce the charge of murder to manslaughter.  Provocation is not a defence to other circumstances.  Generally, the accused must have committed the offence “in the heat of passion caused by sudden provocation”.  It must be a wrongful act of such a nature that it would deprive an ordinary person of the ability to self control.  The accused must have acted suddenly before there was any time to consider the actions or to cool his passion.

Self Defence:  This is a defence that may be available to a person who committed the wrongful but did so to prevent harm to him ro herself,  to others under their protection or to their property.

This defence is complicated and it is therefore critical that the accused discuss with an experienced criminal defence lawyer the circumstances of any possible self defence.  Generally, there needs to be evidence of the “necessity” to have committed the act by using force and the force used needs to be “reasonable”.

Automatism: This is a defence where the accused is in a state of impaired consciousness with no voluntary control over his or her actions.

Intoxication:  Intoxication may render an accused’s actions involuntary and therefore the accused may not have formed the mental intention to commit the offence.  There are complicated issues surrounding whether or not the intoxication was voluntary or involuntary.

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In Canada, a police officer has the power to arrest a person if the police officer has reasonable grounds to believe that the person has committed a criminal offence.   The arresting police officer may or may not place handcuffs on the person under arrest.

Suspicious circumstances alone are not reasonable grounds to arrest a person. The officer must have enough facts or evidence available that a reasonable person would  believe that the suspect has committed or is about to commit an offence.

A reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.  However, at the same time, the police do not need to show a strong case that would result in a conviction in order to effect an arrest.

Take Note:

A person placed under arrest by the police should not challenge the grounds for the arrest. A person who challenges or resists arrest may face further criminal offences.  Whether or not the arrest was lawful should be discussed with an experienced criminal defence lawyer after the fact when mounting a defence.  You are very unlikely to talk the police out of arresting you.  However, there is a high probability that you will make matters worse.

Not all persons charged with criminal offences are physically arrested by the police. For example, the police may simply serve the accused person with an Appearance Notice.  This does not require an arrest or a trip to the police station.

Section 501 of the Criminal Code provides that an Appearance Notice must state: the name of the accused, the criminal charge and the time, date and place where the accused must attend court.

In addition, the Appearance Notice can require the accused to attend a location on a certain date for fingerprinting. The accused must attend on such a date for fingerprinting and failure to do so can result in additional criminal charges.

If the accused does not attend the court appearance, the court can issue a warrant for arrest and the police may then arrest the person and bring them to court in custody.

If you have been arrested, or if you have received an Appearance Notice, you should immediately take steps to retain an experienced criminal defence lawyer.  The propriety of your arrest is one of the areas the lawyer will explore in advancing your defence to the criminal charges against you.