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
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
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
The accused will be given the opportunity to confirm their criminal record to ensure accuracy of the document
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
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
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.
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))
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”