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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”



Police Vehicle Stop. What you need to know.

police vehicle stop

What to do/what not during a police vehicle stop.

  • police vehicle stop occur thousands of times daily.
  • first things first, the law in Ontario sees driving as a privilege, not a right. So while you are protected by the charter, there are certain obligations that you have during a police vehicle stop.
  • if a police officer has signalled for you to stop, you must immediately come to a safe stop
  • you could face fines or jail time for failing to stop when requested
  • The Highway Traffic Act requires you to provide the officer with three items during a police vehicle stop:
    • your driver’s license
    • proof of insurance
    • vehicle registration
  • Failure to provide these items can result in a fine
  • when you are pulled over, you should stay in the car, turn on the interior lights, roll down the window and place your hands on the steering wheel
  • when the officer comes to the window, provide them with your documents when they request them
  • In Ontario, your passengers are under no obligation to provide identification or to answer questions during a police vehicle stop.
  • The police can order to step out of your car if:
    • they suspect you are impaired and they are administering a roadside breath or sobriety test
    • they’re concerned for their safety (must be reasonable belief)
  • The police may ask to search your car
  • You do not have to give them consent – even if it sounds like an order
  • If you have been pulled over and they want to search your car, you have the right to call a lawyer
  • note that section 8 of the charter applies to the search of the vehicle so the police must have reasonable grounds for the search
  • act respectfully and provide the necessary documentation
  • sometimes, given the context, it’s better to comply with the officer’s requests than to argue with them

– it’s always your right to ask why you have been stopped and to contact a lawyer before answering any questions or consenting to a search




Illegal Confession | Police Manipulate Youth

In Ontario, special rules apply to youth accused of crimes via the Youth Criminal Justice Act (YCJA). In a recent, shocking case, the Durham Regional Police Service used an accused youth’s father as an agent to elicit a illegal confession, with apparent disregard for the YCJA  and section 7 of the Charter (right to remain silent).

Police Obtain Illegal Confession

In a September 2015 Ontario Court of Justice decision, R. v. S.M., a youth was accused of manslaughter. He had been interviewed by police twice and did not give any inculpatory statements. Over the course of the investigation, the accused’s estranged father became an agent of the police and reported his conversations with his son to the police. Justice Susan MacLean of the Ontario Court of Justice found there to be evidence that the police had coached the father and were exploiting the parent/child relationship by way of an illegal confession.

Justice MacLean found that the police had used “particularly manipulative trickery” in getting a confession from the accused youth. Further, she found that the police misconduct “offends the community’s sense of fair play and decency”. Ultimately, the statements the accused made to his father were found to be inadmissible.

Whenever you are interviewed by police, you have the right to speak to counsel. If you are a youth you have further rights under the Youth Criminal Justice Act. For example, notice must be given to parents as soon as possible after arrest or detention of a youth. The youth has the right to have their parent/guardian present during questioning. While the R.v. S.M. decision upheld the importance of the YCJA when youth are questioned by police or persons in authority, it also highlights that there are gaps in the legislation. The best option is to have an experienced defence counsel present when you’re questioned by police. The lawyers at Smordin Law have years of experience defending youth accused of crimes. They understand the importance of keeping youth free of the stigma of a criminal record and helping families through the criminal justice system. Do not be pressed by the police into making an illegal confession.

illegal confession




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