by Leslie-Anne WallWhat happens at the trial?
What happens at the trial?
A – The Canadian Charter of Rights and Freedoms gives you the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
This means you are innocent until proven guilty beyond a reasonable doubt. The trial is an independent and impartial tribunal. The trial is the time when the Crown Prosecutor must present evidence to prove BEYOND A REASONABLE DOUBT that you committed the offence you are charged with. If the Crown fails to do this, the judge must find you not guilty.
The case is called by a court official- typically the court clerk or crown counsel
You should go to the front of the court. You should sit at the front of the courtroom so that you can hear the witnesses and make notes of what each witness testifies to.
The trial begins
The judge will ask you and the Crown Prosecutor if you are ready for the trial. If you are not ready, the judge will decide whether to continue or adjourn and set another date for the trial. There must be a good reason to ask for an adjournment. When you have told the judge that you are ready, you can sit down. The court clerk will show you where.
If you are representing yourself make sure you attend your trial with pens, paper and a list of questions you want to ask each witness.
The judge is asked to make a witness exclusion order
You or the Crown Prosecutor may ask the judge to make an exclusionorder. This means that the judge excludes anyone who is to give evidence at the trial from the courtroom. You should tell your witnesses ahead of time that they will be asked to leave the courtroom before they have started testifying, and make sure that they leave. However, although you may be a witness and give evidence at your own trial, you must remain in court for the whole trial. (this is required so you can hear thew crown witnesses testimony it is important that you hear what is being said and see the witnesses as they testify).
The Crown Prosecutor presents the case against you
To prove the case against you, the Crown Prosecutor must present evidence on the standard of PROOF BEYOND A REASONABLE DOUBT that you:
•Are the person charged with the offence on the date and at the place alleged in the information
• Committed the offence, and
• Intended to commit the offence.
The Crown Prosecutor will call witnesses
For example, if you were charged with shoplifting, the Crown would likely have as witnesses, the store manager or security officer and the police officer who investigated the matter.
Each witness goes into the witness box, swears or affirms to tell the truth, and answers questions from the Crown. As the witness answers, you should write down the main points and anything that you may want to question later. Note any weak points, for example, where witnesses contradict themselves or each other. When the Crown has finished with a witness, you will have a chance to ask your questions. This is called cross-examination.
The Crown may also use written evidence such as a Breathalyzer test certificate or drug analysis certificate. Before your trial you should get legal advice on how to handle such evidence.
You present your case, called your defence
Until now, the judge/jury has only heard the Crown’s side. It is now your turn to present your side by calling witnesses. If you call witnesses, you must not ask them leading questions. For example, you can ask “Were you with anyone on the evening of August 19?” You cannot say, “You were with me on the evening of August 19 weren’t you?”
When you have finished asking a witness questions, the Crown may cross-examine the witness. If you give evidence the Crown may cross-examine you.
You should get legal advice on what written evidence might be allowed in your case. You will need an original for the court and a copy for yourself and for the Crown Prosecutor.
The Crown and the defence sum up their case
After all the evidence has been presented in court, both you and the Crown have an opportunity to sum up your case (these are called submissions). Use this time to sum up the points in your favour.
If you presented evidence in your defence, you will make your submission first. However, if you are not represented by a lawyer, the judge might ask the Crown to sum up first. If you did not present a defence, the Crown usually sums up first
The judge makes a decision (called the verdict)
Based on the evidence presented in court, the judge must decide whether the evidence against you is sufficient to prove that you are guilty beyond a reasonable doubt.
The judge takes into account all the evidence presented in court by you and the Crown. Sometimes the judge will adjourn the court briefly to allow time to reach a decision.
If there is a jury trial, the jury will reach a verdict together after considering all the evidence presented in court.
If the judge (or jury) finds you not guilty you are free to go. You have been acquitted
If the judge (or jury) finds you guilty, the next step is for the judge to sentence you.
by Leslie-Anne WallRepresenting Yourself in Criminal Court
Do I need to hire a lawyer if I am charged with a criminal offence?
A -It is always a good idea to get legal advice and to have a lawyer represent you in court. Lawyers know the law and legal procedures. They are used to presenting cases and speaking in court. They know what types of questions to ask and how to prepare evidence. However, if you are unable or do not wish to hire a lawyer, you can represent yourself in court. But you should first get some legal advice.
Regardless of what offence you have been charged with you have the right to represent yourself, to be your own lawyer. But just because you can represent yourself does not mean you should. It is very important that you learn about what is at stake in your case, and what you will be expected to do and know in order to handle it on your own.
Do I need to speak to a lawyer to get legal advice before I go to court?
A – Yes. Being accused of a crime is a serious matter. It is worth talking with a lawyer to get advice on your situation, even if you decide to plead guilty or you cannot afford a lawyer to represent you in court. The outcome can affect your future if you are convicted (found guilty at trail or plead guilty). For example, you may get a criminal record and, depending on the offence, you might be sent to prison. A criminal conviction can affect your ability to get a job and to travel outside Canada.
Can I get a free lawyer or a legal-aid lawyer?
A – While you have a right to hire a lawyer, you do not have a right to a government- funded lawyer if you cannot afford to pay for one. Depending on your financial situation and the seriousness of the offence, you may qualify for Legal Aid. Most courts provide duty counsel; however, they can only give you free preliminary advice and assistance for your first few appearances. Duty counsel cannot act as your lawyer throughout your case and they cannot act as your lawyer during your trial.
Can I talk to a lawyer for free when I have been arrested?
A – If you are arrested by the police, they must tell you that you have a right to speak with a lawyer. Always use your right to speak with a lawyer. Legal Aid Duty Counsel is available 24 hours a day, 7 days a week for people who have been arrested or detained by the police. It is free to talk with Legal Aid Duty Counsel. However, if you have a particular private lawyer that you would like to contact, you are entitled to request your lawyer by name – AND you should make sure to speak to your own lawyer anytime you are in police custody.
The police must also tell you that you have a right to remain silent and that anything you do say may be used as evidence against you. You should talk with a lawyer before you say anything to the police.
How will I know what offences I am charged with?
A – There are offences under federal laws such as the Criminal Code of Canada. These are called criminal offences. There are also offences under federal laws such as the Controlled Drugs and substances Act. These are also called criminal offences. There are offences under provincial laws such as the Motor Vehicle Act. These are not criminal offences, but can still have serious consequences.
No matter what type of offence you are charged with, you will receive a written notice describing the offence, the date of the offence and the law you have allegedly broken. For example, if you are charged with shoplifting, the notice may say “theft under $5,000 contrary to section 334(b) of the Criminal Code of Canada.”
by Leslie-Anne WallUnderstanding the Criminal Trial Process
Understanding the Criminal Trial Process
The purpose of a criminal trial is for the prosecution (Crown Counsel) to present evidence to prove your guilt beyond a reasonable doubt. What must be proved depends upon the offence that you were charged with. The role of the Trial Judge is to decide whether the Crown prosecutor has presented sufficient legally admissible evidence to leave them with proof beyond a reasonable doubt that you are guilty of a crime.
A defence lawyer plays a key role in this system. If you have been charged with a criminal offence, you probably have been detained, arrested, charged, interrogated, deprived of your freedom (even if only for a few hours); AND are facing an accusation supported by a police force.
In my experience, most accused person, including well-educated individuals, are overwhelmed and intimidated by the court process. AND YOU SHOULD BE!
So, what do judges look at when they are assessing whether the crown prosecutor has proven the case beyond a reasonable doubt? – CREDIBILITY
How do you show you are credible and telling the truth?
Why would a judge find you are not credible or telling the truth?
A Credibility finding is more than finding out who is the liar and who is telling the truth. Often two opposing witnesses will both honestly believe that their memory of events is correct and that they are telling the truth – Although one (or both!) will simply have a flawed memory.
A judge is doing more than trying to suss out whether or not a witness is lying; he or she is also assessing if an honest witness’s memory can be trusted. Every judge is going to be a bit different, but there are some guidelines every litigant can try to follow to increase their credibility.
Is the witness’s version of events (evidence) Consistent?
This, by far, is the most important thing, because we cannot read minds. On cross-examination, the opposing lawyer is going to try to find as many inconsistencies in each witness’s evidence as possible. The purpose of cross-examination is to test a witness’s evidence and see how consistent it is.
Also, important to note: the consistency of ever witness’s story will be considered from the very beginning of the case to the moment they are in court. WHICH MEANS – Everything you have told people in the past can become evidence in the trial. Any changes in the story which occurred prior to court will be questioned.
Transparency (Answering all of the questions even if they hurt your case)
Remember the “whole truth” part of the oath? Well, courts operate on the presumption that you are going to be transparent. If it looks at all like you’re hiding something or refusing to answer or dodging questions when you’re on the stand, this will seriously detract from the credibility of anything else you do or say. The opposing lawyer cross-examining you will be rubbing his/her hands with glee when you start refusing to answer questions. Of course, there are limits to having to answer questions: the questions must be on a topic that is relevant to the case. But keep in mind, the bar for relevance is very low.
Keeping evidence logical
Your testimony must make sense. Now this is where things can get difficult: what may make sense to you for a person from your background and culture may not make sense to a judge of a different background and/or culture. This aside, before you start your case, think about your story critically from the point of view of someone who has never heard it before. Do your story and/or actions make sense? If not, why is that? Can you address a weakness in your case by conceding a point?
Avoiding erratic or inappropriate behaviour/facial expressions in court
When you’re in a trial, you’re going to be sitting through the opposing party’s case. This means you will be listening to evidence that you believe is not true or is offensive to you. Often the other party’s evidence will be very hard to hear. And even worse, be hard to have to sit there and say nothing!
The minute you start making facial expressions, sighing, standing up and shouting at the judge or witness, you are giving a negative context to the judge in which to assess your evidence.
The Lying Witness
With respect to the witness who is blatantly lying it is important to know that a good liar is hard to catch and even harder if you do not have experience cross-examin9ng lying witnesses.
Often Judges will have no more than a short period of time to be able to assess the credibility of each witness while in court, and so it may be that their rates of accuracy in determining who is blatantly lying will be time restricted and difficult
If your case relies solely on your credibility and you know the other side to be a liar, you may want to consider whether or not it’s worth it to roll the dice in court by representing yourself or hiring an experienced criminal defence lawyer. There are no sure-fire tips to guarantee you can show a witness is lying, however, a thorough cross-examination by an experienced and well-prepared lawyer will help.
How will your lawyer be able to show the other party is lying? Experience & Preparation.
If you believe that you have been wrongly convicted because a witness lied under oath at your trial, you should contact a criminal defense attorney to find out if you can challenge your conviction. Be sure to engage someone who specializes in handling criminal appeals.
by Leslie-Anne WallA Criminal Charge is a serious matter – Experience is the Best Defence: Considerations When Hiring a Criminal Defence Lawyer
A criminal charge is a serious matter. In today’s security-obsessed environment, it seems that everyone is asked to undergo a criminal record check, whether for work, school or volunteering. A criminal record, even for a minor offence, can have devastating consequences for you as an employee, a student, a parent volunteering at your child’s school, a traveler to the United States, a new immigrant, or even as a homeowner seeking to borrow money from the bank.
Vancouver Law Courts
That is why, if you are faced with a criminal charge laid against you by the police, by another branch of government, or by a private citizen, you need to consider hiring a criminal defence lawyer to advise you and to defend your interests.
What if I don’t know a lawyer? If I don’t have any friends or relatives who are lawyers or police officers, how can I find a good criminal lawyer to defend me?
There is so much information on the Internet, how do I know I am choosing the right lawyer?
These are excellent questions
Vancouver is the largest urban area in BC so it’s no surprise that the city accounts for the majority of the province’s criminal lawyers. It’s easy to find a lawyer in Vancouver, however, it’s really worth the time and effort to do the research and find the right one for you. Always remember – Experience is the best defence
This blog will offer some what to look for and why experience is so essential.
Common Questions
Do I need to hire a lawyer?
In most cases where you are facing a criminal charge, the answer is yes. Even the most minor shoplifting or drug possession or domestic assault can cause long term problems and affect your future prospects for employment, travel, school, or even attendance at your children’s school functions. A lawyer will be able to negotiate- or fight for- the best result for you, because she knows what laws, policies, precedents and evidence will be most compelling, and she will know how to assemble and present it all in the most effective way. But more than, this, a good lawyer will provide you with information and insight, to help you understand why you are facing this ordeal; what your options are; and will help you navigate these unfamiliar waters. Your lawyer will not only get you the best results, he will give you knowledge, and peace of mind.
An inexperienced lawyer will often be cheaper than an experienced lawyer, but be careful. An inexperienced lawyer will not typically have the same knowledge and experience. For a criminal charge, don’t cut corners hired an experienced lawyer.
Do I need to hire a lawyer before my first appearance in court?
If you can, the answer is yes. You could go to court, collect your disclosure (the police and crown material) and then meet with lawyers. On the other hand, you will usually have 2-3 mont between your arrest date and the first court date. If you are anxious about the case, and want to get information (as most people do), why wait? This is a valuable time to start looking for a lawyer. Most lawyers will handle routine court appearances for you, including your first appearance, and this can save you time and the stress of going to court until the end of the case. It should cost the same whether you hire a lawyer before or after the first court appearance. Sometimes the lawyer can get started right away, and recommend valuable steps for you to take long before the first court appearance. This could save you time later on, or even help to gather important evidence while it is still fresh. And knowing that you have a lawyer to represent you and to answer your questions, long before you have to go to court, can generate real peace of mind.
Pick a lawyer who focuses her practice on criminal law
There are many lawyers out there. Some are specialists in one area of the law, and some practise in several fields (such as criminal law, family law, and civil litigation). The law is complex and ever-changing. It is challenging enough to stay current and sharp in one area of law; trying to be a “jack-of-all-trades” often leaves the general practitioner the “master of none”. There are exceptions, but especially if you live in a busy urban area, you should seek out a lawyer who specializes in criminal law to defend you in a criminal case.
Choose a lawyer with the knowledge and experience to handle your case
Another thing to ask yourself when looking for a criminal defence lawyer in Vancouver is: “do they know their stuff?” Choosing someone with the right know-how can make a big difference to your case. There are old lawyers who have been around forever, but are tired and unmotivated. There are young lawyers who are motivated, energetic, but just don’t have the experience to know how to guide your case through the analysis, negotiation and trial stages of a criminal proceeding. You need to find a balance. Has the lawyer handled a case like yours? How often? Is she a trial lawyer? If the Crown is proceeding by indictment, has she conducted jury trials before?
Once you have narrowed your search to criminal defence lawyers who have the knowledge and experience to handle your case, you can then move on to consider other important issues that are key to selecting the best lawyer for you and your case.
I want a lawyer who will return my calls!
This is very important. A lawyer who wants your business, but won’t return your call or email promptly when you first contact him/her, is a lawyer who will not be returning your call after he/she has taken your money. A good lawyer is busy, but she is also one who will return your call promptly. You should expect prompt and courteous service. For most matters You should get a call back the same day, and certainly within 24 hours, even if it is to say that he/she has received your call and will get back to you today, or tomorrow by a certain time. And when there is an emergency, like the police are on their way to arrest you, you want a lawyer or law firm that has an emergency number for 24/7 service. A criminal defence lawyer with a 24 hour emergency line is a lawyer who puts clients first.
I want a lawyer who answers my questions and explains the process to me in plain English
The criminal case will feature case law and statute, regulations, policies and procedures, strategy and tactics. For someone who has never been in trouble before, the complexity of the law can seem intimidating. It is. That is why you need a lawyer who takes the time to explain to you each and every aspect of the case, because, as mentioned earlier, it is your case and you are the one who must live with the result. You need to know what is happening with your case, and why. There are no “stupid questions”. Lawyers, especially courtroom lawyers, are, above all, communicators, and so your lawyer should be able to communicate with you properly. That means that you are entitled to have these questions answered, in plain English, and answered promptly.
Come back next week for a continuation of this Blog….
Leslie-Anne Wall – Vancouver Criminal Lawyer
by Leslie-Anne WallAn example of why you should never represent yourself in court if you don’t have to.
by Leslie-Anne WallSelf-Represented Accused in BC Criminal Courts – Legal Coaches Provide GUIDANCE RATHER THAN DIRECTION.
The steady rise in the number of self-represented litigants, individuals who are not represented by lawyers, presents challenges in the Canadian justice system. Generally, the justice system relies on lawyers to function efficiently. Individuals without lawyers often find it difficult to understand the customs and rules of court. However, the Supreme Court of Canada’s recent endorsement of the Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons (“Statement of Principles”) in the recent case of Pintea v. Johns sets a national standard of how the justice system deals with self-represented litigants. BUT EVEN A NATIONSL STANDARD DOES NOT PUT A SELF-REPRESESENTEDLITIGANT ON EQUALLY FOOTING WITH A LAWYER.
Which is why, if you can afford it, please hire a lawyer or a legal coach.
The prevalence of self-represented litigants is unlikely to change as the costs for hiring a lawyer often amount to hundreds of dollars per hour and are unaffordable for many Canadians. A Legal Coach, however, is very affordable, as you only pay for what you need.
Many self-represented litigants are unaware of the nuances of court processes and struggle to navigate the judicial system, leading many lawyers and legal commentators to ask how and whether courts operate efficiently and fairly in cases involving a self-represented litigant. THE ANSWER IS – NO!
Pintea v. Johns
Valentin Pintea was injured in a motor vehicle accident that was not his fault. With the help of counsel, he commenced a proceeding to recover damages to compensate him for his losses and injuries. As the case progressed, he ended up as a self-represented litigant. Without a lawyer, Mr. Pintea struggled to manage the demands of the court process. Though he is well educated, Mr. Pintea is disabled and English is his second language. These obstacles impeded his ability to effectively represent himself.
In particular, Mr. Pintea did not inform the court or the defendants of a change in his address. As a result, he did not receive notices that he was required to attend case management meetings, which are court hearings held prior to trial where a judge makes decisions that facilitate the efficient completion of pre-trial litigation steps. After he missed some case management meetings, a Queen’s Bench Judge found Mr. Pintea in contempt of court, struck his claim, and awarded the defendants over $80,000 in costs.
The case proceeded to the Supreme Court of Canada, which issued a five-paragraph decision shortly after hearing oral argument. The Supreme Court found that Mr. Pintea could not be held in contempt, restored Mr. Pintea’s action, removed the costs award against Mr. Pintea and endorsed the Statement of Principles.
Statement of Principles
TheStatement of Principles states:
Judges, the courts and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation.
Prior to the Supreme Court of Canada’s endorsement, the Statement of Principles were not always referred to or applied by Canadian courts.
There have been many studies on the characteristics of the Self represented Litigants (SRL). What the studies all show is the same – SRL’s are broadly representative of the general Canadian population. 50% were men and 50% were women. 50% had a university degree. 57% reported income of less than $50,000 a year and 40% (the largest single group) reported incomes of less than $30,000 a year.
According to the studies, by far the most consistently cited reason for self-representation was the inability to afford to retain, or to continue to retain, legal counsel. In addition, some SRL respondents were dissatisfied with the legal services that they had received earlier in this case when they were represented by counsel. All of the SRL study respondents had exhausted their available resources and were often resentful that despite significant expenditures on private legal services, they were still not at the end of their action. This is where legal coaching can help you!
While there is a large amount of the assistance presently made available to SRL’s by the courts (and some service providers) in the form of on-line information and related technologies (on-line forms, informational websites, and some video material) most have been written in legalese. Which means most lawyers, let alone real people, have no idea what the information means. THIS IS WHY LEGAL COACHING IS SO IMPORTANT AND SO BENEFICIAL FOR SLR’S. Instead of becoming disillusioned or disappointed hire me as your legal coach.
As your legal coach I will help you identify the weaknesses in the case against you: provide information on where and how to access substantive legal information and I will also assist you to identify the absence of information and give tips on practical tasks like filing or serving documents, advice on negotiation or a strategy for talking to the other side, presentation techniques, or even legal procedure.
The reality is no matter how complete, comprehensive and user-friendly the on-line resources are; they are usually insufficient to meet your needs for face-to-face court appearances.
AS A LEGAL COACH I WILL PROVIDE GUIDANCE RATHER THAN DIRECTION
Leslie-Anne Wall
Barrister & Legal Coach
by Leslie-Anne WallSubjective mens rea applies to bail conditions
**Reprinted from Canadian Lawyer Magazine – Written by – By Anita Balakrishnan
The Zora decision finds subjective mens rea applies to bail conditions, breaches
The Supreme Court of Canada says courts should look at personal circumstances, particularly when bail is unintentionally breached
Criminal defence lawyers are praising a Supreme Court decision that could force Crown attorneys, judges and justices of the peace to think carefully before enforcing needlessly harsh bail rules that “set the accused up to fail.” The June 18 decision, R. v. Zora, 2020 SCC 14, will help prevent cascading harm to clients accused of bail breaches, and will help ensure that accidental breaches of onerous conditions are not misconstrued as “lack of respect” for the law, says Matthew Nathanson, one of the lawyers who intervened for the Independent Criminal Defence Advocacy Society.
“This is a watershed judgment on so many levels. The court has spoken with one voice, and has substantially and positively affected how the bail system will operate across Canada,” says M. Nathanson. The decision centres on British Columbia appellant Chaycen Zora, accused of three counts of possession for the purpose of trafficking. While on bail in September and October, “the police came almost every day, at different times in the evening, to check his compliance with the curfew,” wrote Justice Sheilah Martin for the court.
Zora was required to answer the door within five minutes, but he failed to answer twice in one month, over Thanksgiving weekend, at around 10:30 p.m. Because guests were over, it was difficult to hear the bell, and Zora was sleeping off withdrawal symptoms in a bedroom on the far side of the house. Although Zora installed a video system to help prevent future missed doorbells, a lower court judge found he had failed to “arrange life to comply with the terms of bail.” In the decision, the court looked at whether personalized bail conditions meant that the breach of bail findings should also be personalized or “subjective,” particularly in evaluating whether a breach of bail was intentional or reckless. The court allowed Zora’s appeals, quashing the convictions and ordering a new trial on the two counts of failing to attend at the door. “[The SCC decision] clarifies the mental element for the breach of bail is subjective and not objective, which brings this area of the law into line with other analogous areas like breaches of probation. But the significance of the judgment goes much further than that. It reaffirmed the importance of the presumption of innocence and it’s crucial part in the organization and application of the bail system,” says Nathanson.
In the decision, Martin raised several issues with Canada’s bail system: that the accused in bail hearings is presumed to be innocent and bail should not be punishment; that breaches of bail can continue to follow the accused and create a snowballing criminal record; that overly strict bail conditions can set accused up to fail; that these offences are “clogging” the system; and that a system of self-represented and risk averse litigants can lead people toward agreeing to stricter bail conditions.“It’s a great decision and very helpful. It very helpfully addresses broader issues with bail — in particular bail conditions,” says Christine Mainville, who acted for intervener Criminal Lawyers’ Association of Ontario.
“The court engaged with the call of intervenors to address broader issues, including how we end up with so many fail-to-comply charges in the system. . . .They engage with a problem that has long existed: of imposing overbroad and overly numerous conditions of release.”
According to Statistics Canada, around 60 per cent of adult criminal charges result in a guilty decision. Although those on bail are considered innocent until their charges are proven in court, Mainville says that in practice, “all of the participants tend to act as though the accused is guilty.”
“That can significantly impact the analysis and the determination of what does constitute an appropriate condition of release in the circumstances,” says Mainville. “That is why the default position should be a release without conditions or sureties.”
In the decision, Martin wrote that while on bail, the accused may face criminal charges for skipping school or taking a sip of alcohol — which otherwise would not be criminal offences. “Those living in poverty or with addictions or mental illnesses often struggle to meet conditions by which they cannot reasonably abide,” wrote Martin, citing a report by the Canadian Civil Liberties Association that explained: “Canadian bail courts regularly impose abstinence requirements on those addicted to alcohol or drugs, residency conditions on the homeless, strict check-in requirements in difficult to access locations, no-contact conditions between family members, and rigid curfews that interfere with employment and daily life. Numerous and restrictive conditions, imposed for considerable periods of time, are setting people up to fail — and failing to comply with a bail condition is a criminal offence, even if the underlying behaviour is not otherwise a crime.”
Martin wrote that only bail conditions that are necessary should be imposed.
“If an accused is a flight risk, but poses no other risks, only those conditions that minimize their risk of absconding should be imposed. Similarly, if an accused poses a risk to public safety and protection, only the least onerous conditions to address that specific threat should be imposed,” wrote Martin. “A condition that merely seems ‘good to have,’ but is not necessary for the accused’s release, is not appropriate . . . . Even if some condition is thought to be therapeutic, intended to help, or “couldn’t hurt,” the prospect of additional criminal liability under s. 145(3) means any such limits on otherwise lawful behavior may also attract criminal penalties.”
Because bail breaches can result in criminal penalties, people can face imprisonment even if they are never convicted for the crime they were first charged with, the decision noted. In Zora’s case, the victimless offence of failure to answer a door twice on one weekend resulted in four separate charges. In 2016 to 2017, Martin wrote, failure to comply with an order was the most serious offence charged in nine per cent of all completed adult criminal cases.
“The Standing Senate Committee on Legal and Constitutional Affairs also found that failure to comply offences were clogging the courts despite being offences that are not ‘strictly indictable’ and ‘involve no harm to a victim,’ said Martin’s decision.“In my view, despite high rates of criminal charges for failure to comply, Parliament did not intend for criminal sanctions to be the primary means of managing any risks or concerns associated with individuals released with bail conditions.”
Additionally, even uncontested bail hearings can present problems, wrote Martin, noting that
“the timing and speed of bail hearings impacts accused persons by making it difficult to find counsel, resulting in many accused who are self-represented or reliant on duty counsel who are often given little time to prepare.”
“This process encourages accused persons to agree to onerous terms of release rather than run the risk of detention both before and after a contested bail hearing,” said Martin’s decision.
Martin’s decision suggests questions courts should consider when setting bail, including whether the conditions are reasonable, proportional and necessary: “If released without conditions, would the accused pose any specific statutory risks that justify imposing any bail conditions?; If the accused is released without conditions, are they at risk of failing to attend their court date, harming public safety and protection, or reducing confidence in the administration of justice?; If this condition was not imposed, would that create a risk of the accused absconding, harm to public protection and safety, or loss of confidence in the administration of justice which would prevent the court from releasing the accused on an undertaking without conditions?; Based on what is known of the accused, is it likely that their living situation, addiction, disability, or illness will make them unable to fulfill this condition?; Is this condition sufficiently linked to the grounds of detention under s. 515(10)(c)? Is it narrowly focussed on addressing that specific risk posed by the accused’s release?; What is the cumulative effect of all the conditions? Taken together, are they the fewest and least onerous conditions required in the circumstances?” Nathanson calls this “strong guidance” and a “clarion call” for bail judges to exercise an independent obligation to scrutinize overboard bail conditions, even if both parties consent.
“I think it will absolutely assist in preventing unfair situations from occurring. . . .For example, someone who is addicted to alcohol having a no alcohol condition. That just sets somebody up for failure. The judgment [suggests] the courts should look at all those kinds of conditions very critically and be very careful not to impose them unless they’re absolutely justified,” says Nathanson.
“If you’re going to use breaches of bail as potential aggravating factors in future sentencing proceedings, that the conviction for breaches of bail themselves have to be well founded . . . . If the court is going to interpret breaches of bail as demonstrating a subjective disregard for the law, then those convictions have to demonstrate a subjective mens rea — a subjective violation of the law. That’s an issue of fundamental fairness, and I’m very pleased that the court accepted that argument.”
Mainville says the decision solidifies the default position of bail with no conditions, except attending court. TheZora decision will factor into decisions by defence counsel, Crowns and courts, she says.
“Oftentimes defense counsel are placed in the position of a client who wants to get out as soon as possible — understandably — and is prepared to consent to very onerous conditions . . . . as opposed to having a contested hearing with an uncertain outcome,” she says. “I think the biggest shift will be at bail hearings. And it will impact the Crown when they initially vet a candidate for release. So, I think they will be more cautious in the conditions they proposed and put forward to the court. The defence I think, has a stronger leg to stand on to resist unnecessary conditions of release or conditions that set the accused up to fail, which are not infrequent.
by Leslie-Anne WallLegal Coaching For the Self Represented – Why is it so important & what does it provide?- Legal Confidence
A great criminal defense lawyer knows the ins and outs of the legal system, and may be able to spot certain arguments and factors that could mitigate or even negate a potential crime.
by Leslie-Anne WallWhat Does A Criminal Conviction Mean for You?
If you are looking at prison time or a criminal penalty, it is extremely important to hire a criminal defense lawyer. The legal system is designed and biased so that representing yourself in a criminal trial and expecting a good result is almost impossible.
by Leslie-Anne WallThe Benefits of Hiring An Experienced Lawyer
If you are facing a criminal charge, no matter how minor, you should talk to a defense attorney to fully understand your case. A consultation with an experienced attorney will help you to understand the charges placed against you, the defenses available, what if any plea bargains may be offered to you, and what you should do if you are convicted. We offer free consultations – just contact us. If you are facing a serious charge, however, it is highly recommended that you have a skilled defense attorney represent you in court, and to not attempt self-representation based on a consultation.