RECENT BLOG POSTSNov. 2010
KOSTMAN & PYZER BARRISTERS
Toronto Criminal Lawyers
WE FIGHT FOR YOUR RIGHTS AND WE FIGHT TO WIN!
Toronto Ontario Canada
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All clients have a significant investment in the outcome of their case. A criminal prosecution exacts a toll on an individual. Generally speaking, the process is a finite one. It is the outcome of the case that may have lasting implications, psychologically, financially, and socially. A person convicted of impaired driving or a related offence will eventually have their ability to drive restored but will face a lifetime of greater insurance premiums. A conviction for a minor offence may forever affect a person's ability to travel.
A person convicted of a criminal offence may have to provide a drop of blood so that their DNA is stored in a police databank. Fingerprints and photographs taken upon arrest are retained by the police unless a formal application is made to have them destroyed.
There are various dispositions available in the criminal justice system. These dispositions all have different implications for the client. They are:
1.Diversion- formal or informal
3.Suspended sentence or fine
Custodial sentences: Conditional Sentence/Incarceration
A criminal record can have a devastating impact on a person's livelihood and ability to travel. For many clients who have had contact with the police, their number one concern is that they do not have a criminal record after the case is completed. Although criminal records can be expunged by a successful pardon application, either three years or 5 years after the case disposition, most clients choose to avoid a criminal record if at all possible.
Once a criminal charge has been laid, it proceeds through the court process until there is a definitive disposition in the case. A Crown Attorney has prosecutorial discretion at any juncture in the proceedings to withdraw a criminal charge that is before the courts. If the charge is withdrawn, it is the equivalent of a dismissal of the charge, and the individual to whom the charge pertains, will not have a criminal record.
If the charge is withdrawn, your lawyer should apply to the Toronto Police Services, or other police force to ensure that all photographs and fingerprints taken by the Identification Bureau are destroyed. A Crown Attorney may intervene, often in consultation with the defence, and withdraw a charge for the following reasons:
1.Successful completion of Diversion (formal or informal).
2.Defendant agrees to enter into a Peace Bond.
3.Crown Attorney assesses the strength of the case against an individual comes to the conclusion that there is no reasonable prospect of conviction.
In certain cases, the Crown Attorney will decide that the case should not proceed to trial for reasons unrelated to evidentiary concerns. For instance, if the Crown Attorney is of the view that due to the lengthy delay between arrest and trial, the case may be vulnerable to a constitutional challenge, the Crown Attorney may direct the court to enter a stay of proceedings in the matter. If the proceedings are stayed, the proceedings may be reinstituted within a one year period. A "stay of proceedings" does not constitute a criminal record.
Upon a finding of guilt, whether after trial or guilty plea, an individual may be granted a "discharge" (absolute or conditional). A discharge is not a criminal conviction. A person who receives a discharge disposition is viewed in law as having no criminal record, and no criminal convictions.
The mere fact that an individual has been charged with a criminal offence does not mean that they will necessarily have to successfully defend themselves at trial to avoid a criminal record or a finding of culpability. In the context of a larger metropolitan area like Toronto, the Crown Attorney who prosecutes a case has a significant degree of discretion so as to ensure that lesser crimes do not burden the resources of the criminal justice system. If every allegation of theft or assault or simple possession of marijuana were the subject matter of a trial, the justice system would suffer gridlock.
In minor cases, where the person charged has no significant history before the courts, and does not need to be monitored by a probation officer, diversion is available. Diversion is a formal or informal arrangement entered into by the client, whereby upon the performance of a particular act, the criminal charge is withdrawn. There is no criminal record. Diversion is the equivalent in law of a dismissal of the charge. There is no finding of guilt and, generally speaking, no admission of culpability. In the context of a young person, diversion is called "alternative measures". To be eligible for alternative measures a young person must admit responsibility "generally" in writing, but no plea of guilty or admission of responsibility is ever made in court.
Diversion is either formal or informal. In informal diversion, the client through our office performs some act which has been agreed to by the Crown Attorney. Upon proof in writing that the act has been performed, the charge is withdrawn. The guilt or innocence of the client is not a factor, and no admission needs to be made by the client.
There are various "formal diversion" programs that are available to the client which operate out of the courthouses, often through the Probation offices. For instance, an individual charged with a prostitution related offence can avoid any further inquiry into criminal culpability by agreeing to participate in "John School", a series of lectures that speak to sex trade issues. A person with a history of mental health issues (depression etc.) may qualify for Mental Health diversion. A person of First Nations heritage may qualify for diversion through formal programs in place in that community.
Diversion takes many forms. In "mischief" (damage to property) cases, it may be achieved by monetary payment to the complainant to recompense them for damages allegedly caused. In "assault" cases, where the complainant and the defendant are strangers, diversion may take the form of a "Peace Bond". A Peace Bond is a court order where the client agrees to have no further contact with the complainant for a prescribed period. The charge is then withdrawn. There is no criminal record or consequence. In other cases, a charitable contribution or community service can be arranged formally through the courts or informally through our resources. Upon completion of the community service or payment of the charitable contribution, the charge is withdrawn without any criminal record.
Diversion can take almost any form, so long as the Crown Attorney's office is in agreement that the plan proposed as "diversion" will constitute the consequence. Selecting a plan of "diversion" which works for the client and will satisfy the Crown Attorney is a creative process that can only be accomplished by a criminal law practitioner with significant experience in the courts who is aware of the resources available in the courts and in the community.
Charitable donations. Counseling. Community Service. Letters of Apology. These actions are the basic currency of Diversion. The real task is to convince the Crown Attorney with carriage of a case that Diversion is a satisfactory response to the offence alleged, and, more specifically, the particular diversion proposal offered fairly addresses the circumstances of the offence, the person aggrieved, and the client. There are now "Up Front Justice" teams of Senior Crown Attorneys in the courthouses assessing the suitability of Diversion for specific cases.
"Discharges" come in two forms. "Absolute" and "Conditional". A discharge is a disposition made by a criminal court whereby the client is found "culpable" or guilty, but no criminal conviction is registered. The is not merely semantics. A "discharge" disposition allows a person who is found guilty of the offence, to state that he has never been convicted of a criminal offence and has no criminal record.
That does not mean that there is no record of the finding of "Guilt". The fact that an individual has been found guilty of an offence is information that will attach to a person's name in the police databank, CPIC. Furthermore, United States Immigration does not consider a discharge the equivalent of a lack of criminal record and may refuse entry to the U.S. on that basis. In fact, even prior to September 11, 2001, anyone with even an "absolute discharge" in the Canadian computer system would ordinarily be denied entry into the United States unless they had applied for and received a formal waiver. Currently, United States Immigration has a significant degree of discretion insofar as it relates to the admission of individuals with "discharges" or criminal records. Generally, the nature of the offence is more significant. i.e. Felony or misdemeanor (roughly, indictable or summary conviction).
However, in the domestic context, a "discharge" disposition is an excellent result which allows a person to declare that they have never been convicted of a criminal offence and that they have no criminal record. This can be especially significant in the context of future employment since many job applications pose the critical question, "Have you ever been convicted of a criminal offence?" A "discharge" disposition allows the client to answer "No" to that question.
A "discharge" will be granted "if it is in the best interests of an offender and not contrary to the public interest". Of course, it is almost always in the best interest of a client who is found guilty, whether after a guilty plea or after trial. It is certainly still available to a client after trial but less likely since by implication the client has not shown remorse through a guilty plea. The concept of "public interest" is a fluid one depending upon the community and the prevalence of the offence within the community.
A "discharge" may be granted conditionally upon the performance of some conditions contained in a probation order. Once those conditions are satisfied and the probationary period ends, the discharge becomes "absolute".
A "discharge" is the best result obtainable after a finding of guilt by the court.
The "Suspended Sentence" disposition and the Fine disposition both are results that indicate a finding of guilt and a criminal conviction/ criminal record.
The "suspended sentence" means that the court is "suspending the passing of sentence", and not directing a more serious consequence. The court makes a finding of guilt and a conviction is entered, and the individual charged is normally placed on probation for a period of up to three years. There are normally various conditions attached to the probation, for instance, no contact (direct or indirect) with the complainant, not attend at a particular address, or attend for such counseling as directed by the Probation Officer, or perform a certain number of hours of community service.
If the Court orders a monetary penalty or "fine" disposition, the individual is ordinarily given a certain period of time to pay the fine, or in default there may be a term that the individual serve a number of days in jail. The benefit of a "fine" disposition over a "suspended sentence and probation" is the finality of the consequence in the former case. A "fine" disposition is over on the day that it is imposed. A "suspended sentence and probation" often involves periodic reporting to a probation officer who will monitor the performance of the conditions in the Probation Order until the order is concluded often months after the disposition day. There are other important implications, including an individual's eligibility for a Pardon (where a person's criminal record is expunged).
The waiting period for Pardon eligibility is ordinarily three years in the context of a summary conviction offence and five years in the context of an indictable offence. This time period commences upon the expiry of an individual's sentence. Thus, the "pardon" clock starts running immediately upon a "fine" disposition whereas at the conclusion of the probationary period where a person is placed on probation.
Where a person is found guilty of an offence and the Court directs a disposition of either a conditional discharge (no conviction) or a suspended sentence (conviction/criminal record), the Court will impose a period of probation for a period up to three years in duration. During this period, the Court will impose as conditions various directives, some as a form of punishment or reparation to the community, and some conditions designed to address the circumstances that give rise to the offence.
For instance, if the individual is convicted of an alcohol related driving offence, the court may impose as a condition of probation, the condition that the individual attend a lecture/video called "Missing You", a program that discusses and reveals the tragedies caused by impaired drivers. Individuals placed on probation for prostitution related offences will often be sent to "John School", a program that speaks to sex trade related issues. Spouses who are found guilty of "domestic assault" will often be directed to attend the PARS program (Partner Assault Response), a series of lectures which deal with anger related issues that occur within a spousal setting. If there is an alcohol or drug component to an offence, an individual will often be ordered to attend for such counseling as is directed by the probation officer. An individual may be ordered to reside at an address approved of by a probation officer or to report to a probation officer so that someone with supervisory authority will monitor compliance with the Probation Order.
Other conditions of probation may relate to other circumstances of the offence, for instance, keeping parties apart, keeping spouses apart (except with written revocable consent) or the possession of weapons.
A Probation Order is a court order. The contravention of a Probation Order constitutes a criminal offence, often more serious than the underlying offence that gave rise to the Probation Order. A person who breaches a Probation Order is charged and processed in a similar way as the commission of any criminal offence. The individual may be held for a bail hearing. A conviction for breach of a Probation Order has serious implications. Although an individual charged with Breach of Probation is technically eligible for a "discharge" (no conviction or criminal record), it is rare that a discharge is received since in the best case scenario the individual has already received a "discharge" in respect of the underlying offence.
The breach of a Probation Order can also come back to haunt an individual since the prior contravention of a court order is viewed as a negative circumstance or omen when considering bail, or any future disposition which may allow for probation.
The ultimate consequence that most individuals seek to avoid is a custodial sentence. In reality, the more egregious the crime, the greater the likelihood of incarceration after conviction. Recently, the relative comfort and length of Canadian jails and jail sentences received some media attention in the United States in the Conrad Black prosecution. It was suggested that the prosecution's main witness Radler made a "sweetheart" deal for himself because his sentence would be served in a Canadian jail.
The Canadian penal system is divided according to the length of sentence that an individual receives. A person who receives a custodial sentence of two years or more is placed in the federal penitentiary system with other inmates who have been convicted of more serious offences. An individual who receives a sentence of less than two years (up to two years less a day) is placed in the provincial reformatory system, and housed with inmates who have been incarcerated for less serious offences.
In the Federal penitentiary system, an inmate is eligible for day parole after serving one sixth of their sentence. They are eligible for full parole after serving one third of their sentence. Full parole is mandatory after two thirds of the sentence is served.
In the provincial reformatory system, an individual is eligible for parole after one third of their sentence. Parole is mandatory after two thirds of the sentence has been served.
Contrary to the media and defence spinning in the Conrad Black case, a Canadian jail is no country club. Whether one's quality of life is better or worse than in an American jail setting, anyone who has stepped foot in a Canadian jail would agree that it is nothing to aspire to.
In 1995, in response to the realization that the jails were overcrowded and that custodial sentences were unnecessary and of little benefit to non-violent offenders, the government of Canada introduced a new concept into the criminal justice sentence: The Conditional Sentence.
Where a court is of the view that the custodial sentence to be imposed in a particular case is in the reformatory range (less than two years) and where the offence itself attracts no minimum sentence in law, the court may order that the custodial sentence be served in the community. Thus, a "conditional sentence" is a custodial sentence served in the community.
Practically speaking, in most cases, at the front end of the conditional sentence, during the first stage of the conditional sentence, the court imposes a period of house arrest except for medical emergencies and a window of opportunity to shop for necessaries. Later, during the term of the conditional sentence, these conditions are often relaxed to allow the individual to return to or obtain employment or attend school. The strict house arrest is often replaced by a curfew. A "conditional sentence" supervisor monitors an individual's progress similar to a probation officer.
From a court's perspective, the key factor in determining the feasibility of a conditional sentence is "protection of the community", or the danger that a particular person presents to the community even from their home. If a person has a negative history in relation to court orders, probation or bail, or if the person has a significant recidivist criminal history, it is unlikely that a conditional sentence will be ordered. Furthermore, if the "optics" are bad, sometimes a court will be slow to impose a conditional sentence. Recently, in Toronto, His Honour Judge J. Moore imposed a "conditional sentence" for two young men with no criminal history who's actions in racing their motor vehicles contributed to the cause of the death of a Toronto taxi driver. The Crown Attorney's office is appealing their sentences.
While on paper it may appear that a "conditional sentence" is nothing but a more strict form of probation, there is one very significant difference. In the case of an allegation of a breach of a Probation Order, the probationer is charged with the criminal offence of Breach of Probation and is processed as they would be for any criminal allegation. He would ordinarily be released on some form of bail, and the issue of the breach would be decided at a trial down the road.
However, where a person is alleged to have contravened a conditional sentence, a warrant is issued for their arrest and they are held for a conditional sentence breach hearing. At that hearing before the original sentencing judge, the presumption is that the remainder of the conditional sentence will be served in custody. Once the breach is proven or admitted, the burden is on the person who is alleged to have breached the conditional sentence to convince the court that the conditional sentence should continue. This is often an uphill battle once the person has already been found in breach of the conditional sentence. The court still may reduce the remnant custodial portion of the sentence or impose any other sentence allowed in law after consideration of the breach.
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