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Monthly Archives: October 2015

Criminal Disclosure. Crown hiding evidence?

An ongoing criminal matter in Ottawa is bringing up questions about the Crown Attorney’s duty to provide criminal disclosure. A decorated Afghanistan war veteran, Collin Fitzgerald, will soon be going to trial to fight a charge of breach of recognizance. Fitzgerald was on bail and one of the conditions was that he remain at his parent’s house. In July, 2014 there was a fire at his home in Iroquois, Ontario. Neighbours took pictures of the blaze and turned the pictures over to the police. The police identified Fitzgerald in these pictures and charged him with a breach. According to the neighbours, they did not identify Fitzgerald in the pictures and three of them gave statements to police saying that it was not Fitzgerald in the pictures. With Fitzgerald going to trial to fight the breach charge, the witnesses are asking why their statements to police seem to have disappeared. The statements were not part of the disclosure packet that was given to Fitzgerald’s lawyer.

Criminal Disclosure Decision

In the landmark decision R v. Stinchcombe (1991), the Supreme Court of Canada ruled that the Crown has a legal duty to disclose all relevant criminal disclosure to the defence. All relevant information whether inculpatory or exculpatory has to be provided to the accused, as soon as possible. The Crown can still claim privilege and doesn’t have to disclose anything that is clearly irrelevant. The basis of this rule is the right for the accused to make full answer and defence which is enshrined in section 7 of the Charter of Rights and Freedoms.

Smordin Law Approach

When a new client comes to our firm, the first thing we do is request disclosure. Ideally, this disclosure is available for the lawyer to pick up at the first court appearance (although it can sometimes take longer). Then a lawyer will go through the disclosure to see if there is any important information missing. If there is, they will request additional/particular criminal disclosure from the Crown. It’s an essential part of your defence so it’s important to have a lawyer who knows what to look for.

The Fitzgerald case will not be resolved until December but it emphasizes the importance of the Crown’s duty to disclose and of the defence’s role in making sure that full criminal disclosure has occurred.

Smordin Law Criminal Lawyers
41 King William St. #200
Hamilton, ON
L8R 1A2
Tel: 1 (905) 525-0005
Toll Free: 1 (844) 525-0005
Fax: 1 (905) 525-5716
www.smordinlaw.com




Guilty Plea? What you need to know.

guilty plea ontario criminal court

Definition

A Guilty plea is common way for charges to be disposed of quickly, generally with a reduction in risk of receiving a maximum penalty in exchange for admitting guilt early on in a proceeding.

  • a guilty plea is when an individual voluntarily admits guilt to the offence they are charged with
    • in admitting guilt, the individual is also admits to all of the facts of the offence
    • in addition, the individual foregoes their right to a trial and proceeds straight to sentencing
  • a court must be satisfied that:
    • the plea is voluntary
    • the plea is an admission of the essential elements of the offence
    • the accused understands that the court is not bound by any agreement the accused and prosecutor make (the court is allowed to rule differently than whatever deal the accused and prosecutor agree on)

Why Plead Guilty?

  • pleading guilty is a choice
  • saves time for the accused – don’t have to wait in jail or out on bail for the case to go to trial
  • saves money for the accused – less time in the court system means smaller lawyer fees
    • but also, this is less financially disruptive, as the accused needs to take less time off work to deal with court-related matters
  • saves time for the court – the court doesn’t have to go through the numerous procedures that must occur before a trial
  • the Crown may look favourably upon an admission of guilt and reduce charges or fine
    • this is because the accused is showing remorse and saving the court’s time and money

When Not to Plead Guilty

  • an individual should not plead guilty if they do not want to plead guilty
  • an individual should not plead guilty if they believe they are not guilty of the allegations
  • an individual should not plead guilty if they dispute some or all of the facts made in the allegations
  • an individual should not plead guilty unless they are acting of their own volition, and have the capacity to understand the positive and negative aspects of such a plea

The Process of a Guilty Plea

  1. The Crown will read in the allegations against the accused. The accused can agree or disagree, but a guilty plea assumes the accused will admit the facts
  2. The accused will be given the opportunity to confirm their criminal record to ensure accuracy of the document
  3. The Crown and the accused’s counsel will each submit their position before the judge. The accused’s counsel can submit mitigating details about the accused, or there can be a joint submission, where the accused’s counsel submits the same information as the Crown.
  • Submissions will include statements regarding appropriate penalties for the accused

The judge will deliver a sentence. This can be done immediately, or on a future date.

Hiring a Private Lawyer for Your Guilty Plea

  • a private lawyer can get to know you and your case better
  • a private lawyer has more time to dedicate to researching important aspects of your case
  • you can’t choose which duty counsel you get, but you can select your lawyer
  • a private lawyer does not have to prioritize clients in the same manner duty counsel does, allowing more more efficiency

Sources:

http://laws-lois.justice.gc.ca/eng/acts/C-46/section-606.html

http://lawfacts.ca/criminal/guiltypleas

Smordin Law Criminal Lawyers
41 King William St. #200
Hamilton, ON
L8R 1A2
Tel: 1 (905) 525-0005
Toll Free: 1 (844) 525-0005
Fax: 1 (905) 525-5716
www.smordinlaw.com




What is a Breach (probation, undertaking)?

breach probation

What is a Breach (probation, undertaking)?

  • a breach is when someone does not comply with or violates the terms of a court order
  • there are many different types of breaches depending on the type of order
    • breach of undertaking
    • breach of recognizance
    • breach of probation

Undertaking

  • an undertaking form of release by police
  • it is essentially a promise
  • accused undertakes to abide by certain conditions during their release
  • there are many different possible conditions: to stay away from certain places, to stay in the jurisdiction, not to communicate with certain people, etc.

Recognizance

  • a recognizance also requires the accused to comply with certain conditions but there’s a financial penalty if they do not
  • a recognizance can be entered with sureties or without and with a deposit or without, depending on the circumstances

Breach of Recognizance or Undertaking

  • if you breach one of the conditions of the recognizance or an undertaking, it is an offence
  • failure to comply with the conditions is punishable by imprisonment not exceeding two years, if the crown proceeds by indictment, or the crown can proceed summarily (Criminal Code section 145(3))

Probation

  • a probation order can be a sentence on its own or can be part of a person’s sentence
  • the individual has to comply with a series of conditions
  • Some conditions are mandatory “keep the peace and be of good behaviour”, appear in court, notify the court of any changes to personal information (name, address, employer)
  • there can also be optional terms like non-communication orders, drug and alcohol conditions, etc.

Breach of Probation

  • if you fail to comply with the conditions of probation then it is a criminal offence
  • if you’re convicted of a breach of probation you could face up to 2 years in jail if the crown proceeds by indictment and up to 18-months in jail or a fine not exceeding $2000, if the crown proceeds summarily (Criminal Code 733.1(1))
  • if you commit an offence while you’re on probation it’s a failure to comply with the condition to “keep the peace and be of good behaviour”



Bail Hearing, what is the definition?

what is a bail hearing?

What is the definition of a Bail Hearing?

  • a bail hearing is a procedure where a judge decides whether or not to release an individual into the community during the time between their arrest and the final decision regarding their case
  • a bail hearing can take place before a judge or a justice of the peace

When can a bail hearing take place?

  • a bail hearing can happen at several points in an individual’s journey through the justice system, but typically happens either:
    • as soon as possible after arrest, or
    • can be scheduled if the individual is in custody

What happens during a bail hearing?

  • the Crown will announce its position to the court, and will specify the grounds on which it seeks detention
  • the Crown will then call witnesses, and/or read in the police background about the client, and/or read in the synopsis of the allegations as provided by police
  • the defence asks questions
  • the sureties are examined and cross-examined
  • the party that bears the onus makes submissions firms
  • the judge or JP comes to a decision

What are primary, secondary, and tertiary grounds?

  • theres are the grounds on which the Crown argues to keep the individual in custody until his or her trial
    • primary: risk that the individual will flee the jurisdiction or not attend court dates when they need to
    • secondary: significant likelihood of reoffence
    • tertiary: detention in the interest of ensuring the public’s confidence in the administration of justice
      • only to be used in severe circumstances

What is a reverse onus bail hearing?

  • in a regular bail hearing, the Crown has the onus of proving why the individual arrested should be detained, but in a reverse onus bail hearing,the individual must prove whether should be released

Is release guaranteed when an individual has a  bail hearing?

  • no, release can be denied, but only if there is just cause

What is a recognizance?

  • a recognizance is a form used by the courts that sets out the conditions of an individual’s bail, and his or her dates of return
  • can includes such provisions as:
    • keep the peace and be of good behaviour
    • abstaining from drugs and alcohol
    • curfews
    • prohibitions on associating with certain people or being in certain locations

Why is it important to have private counsel?

  • can offer personalized service
  • perhaps know the client from before

Sources:

How to Prepare a Bail Hearing (Lawyers Guide)

http://www.legalinfo.org/criminal-law/bail.html

http://www.attorneygeneral.jus.gov.on.ca/english/glossary/?search=r*




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