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Information contained on this web site is to be considered general information only. Nothing on this Web Site is to be construed as constituting legal advice.
Please make an appointment to see me with respect to any specific legal concern.
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What To Do When The Police Arrive?
The police have just arrived and charged you with committing a criminal offence. What do you do now? Most people in Canada and the United States (and undoubtedly everywhere else) who are confronted by the police become very anxious. After all we feel that if we don’t answer a police officer’s question that we will find ourselves in jail. The reflex response is to tell the police officer why we are not involved in the offence we are being charged with, assuming that if satisfied with our explanation, the police officer will let us go. Good idea, right? Well, maybe not. Anything you say which will help the police convict you, can be used against you in court. Anything you say explaining that you had nothing to do with the crime even if on videotape can not be used to help you in court. In other words, only bad statements can be used not good ones. This is why in Canada and the United States you have the right and should exercise that right to remain silent and speak to a lawyer right away. However, if an immigration officer questions you either at a port of entry or otherwise, it is against the law not to answer the questions truthfully. |
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What Is a Discharge?
One of the most asked and most misunderstood questions relates to discharges. If I plead guilty to an offence and receive an absolute or conditional discharge, what does it mean?
The short answer is that you have a limited-time record but not a conviction for the offence. The long answer is obtained from the following two excerpted pieces of legislation:
The Criminal Code defines a discharge as: |
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 730. (1) Where an accused, … , pleads guilty to or is found guilty of an offence ,... the court before which the accused appears may, ... , instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
...
(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence.
Section 6 of the Criminal Records Act states that: |
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6.1 (1) No record of a discharge under section 730 of the Criminal Code that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if
a) more than one year has elapsed since the offender was discharged absolutely; or
b) more than three years have elapsed since the offender was discharged on the conditions prescribed in a probation order.
(2) The Commissioner shall remove all references to a discharge under section 730 of the Criminal Code from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police on the expiration of the relevant period referred to in subsection (1). |
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How Long Will It Take to Get to Trial?
The anxiety of being charged with a criminal offence can have profound consequences. It usually creates a great deal of stress and uncertainty in people’s lives. One of the first questions on the mind of a person charged with a criminal offence is how long before it is all over. Like most things involving the legal system, that seemingly simple question has a complicated answer. It may become clearer once an simplified overview of criminal procedure is provided.
Once you have been charged with a criminal offence, you will be required to attend court. If you held by the police for a bail hearing, you will likely be brought to court as soon as a court is sitting usually the next day. If released by the police, a court date will be chosen for you, usually in 4-6 weeks from the date charged with the offence. After the bail procedure is completed, or if released by a police officer, you will required to attend assignment court. That first assignment court date is an opportunity to obtain disclosure of the case against you. The disclosure may include witness and police statements, audiotapes, videotapes and pictures depending on the nature of the charge against you. Disclosure may or may not be available on the first or even second court appearance. In either case, you will be asked to return on a date of your choosing.
Once you have disclosure, you should review it with your lawyer to determine whether any legal defences are available to you. Likely a meeting with a prosecutor and your lawyer will be required to determine how long a trial will likely last and also to canvass what likely penalty the prosecutor will be seeking either on a plea of guilty or if found guilty after a trial. If the case is complex or will take more than ½ a day for trial, usually a meeting with the prosecutor and a Judge, called a judicial pre-trial will be required. The same issues of trial length and penalty will be discussed. The discussions will then be reviewed with you for you to decide which of your options you wish to choose.
Depending on the availability of disclosure, the initial ‘intake’ period could take either a few weeks or months. A trial date is then set often 6-9 months into the future. If the charge is an indictable offence and you have elected a preliminary inquiry and trial by Judge and Jury, the assignment court and pre-trials will be repeated in the Superior Court of Justice after your preliminary inquiry is completed. |
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How Long Until I Get Of Jail?
An excellent article has been written that provides guidance on how to calculate the time from sentencing to parole eligibility date. Unfortunately, the author of the article is unknown.
This is not intended to be an exhaustive discussion for every criminal case. Please make an appointment with us to discuss any concerns you have in your particular case. |
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Information contained on this web site is to be considered general information only. Nothing on this Web Site is to be construed as constituting legal advice.
Please make an appointment to see me with respect to any specific legal concern. |
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