Toronto Criminal Lawyers Blog

Individuals facing criminal charges are often released on bail while they await trial. When released, the accused individual will be provided with a “recognizance” or other Court order which dictates the terms of release. The recognizance is essentially a document which states that the accused individual is released on bail and stipulates the conditions of that release. An individual released on bail will often have to comply with a variety of conditions upon their release. Some typical conditions are:

• A curfew;
• A prohibition against possessing drugs, alcohol, or weapons;
• A driving suspension;
• A prohibition against communicating or having contact with specific individuals;
• Remain in the province of Ontario.

According to the terms of the recognizance, the accused person is bound to comply with the terms of their bail until the completion of their trial. However, due to the delays in the Toronto criminal justice system, an individual often may have to wait a year or more until their case is heard in a Toronto court. In this context, the terms of the recognizance are often an undue burden on an accused person, making it hard for them to live a normal life in their community. Since every individual in our criminal justice system is presumed innocent until proven guilty, they should not undergo undue hardship as they await trial. As criminal defence lawyers, one of our most important duties is to ensure that our client’s bail conditions are reasonable or as least restrictive as possible. The long delay between a charge and a trial can be stressful enough without having to deal with bail conditions which may interfere with your ability to work, visit loved ones, and interact with your community. We try to lessen that burden by varying any unfair or burdensome bail conditions.

If one of our client’s believes that any condition of their bail unfairly interferes with their lives, we will negotiate with the Crown Attorney’s office to vary the terms of their recognizance. After the Crown agrees to modify a term, that modification must also be approved by a Justice of the Peace. Once agreed upon by all parties, an unreasonable bail condition is replaced or deleted. This is known as “bail variance”

Bail variation comes up often in domestic assault cases where both partners wish to continue their relationship but are forced into an artificial separation by a mandatory restraining order in the accused person’s bail. Often, with the permission of the Crown, a Justice of the Peace, and the alleged victim of the domestic assault, that condition can be removed so that the relationship may resume cohaitation. Another common situation where bail variances can be very effective is in the context of a DUI charge. Sometimes, an individual charged with impaired driving will be released upon condition that they  refrain from driving or being in the front seat of a motor vehicle as part of their bail. However, this can restrict an individual’s mobility to the point that they cannot continue to work. A defence lawyer will often apply to the Court to vary this term allowing the accused person to drive for work purposes. In Toronto, this variation is often granted.

The criminal justice system in Toronto and throughout Canada puts a very high value on an accused person’s ability to continue in their career and maintain family ties as they work their way through the court system. Thus, reasonable bail variations which attempt to accomplish these two goals have a high chance of success in the Toronto system. However, other types of bail variations are also common. For example, as an accused awaits trial they may apply to change their curfew based on good behaviour. As long as the accused person has complied with the terms of their bail and has been otherwise well behaved, the Crown will likely agree to modify their curfew.

An effective criminal defence lawyer will not only take care of an accused individual at the trial stage, but will fight for their rights at every stage of the trial process. A bail variation is one example of how a competent defence lawyer can mitigate the onerous level of stress which a client experiences as an accused. At Kostman and Pyzer, Barristers, we are sensitive to these factors. We protect our clients!

Most people know that for an individual to be convicted of a criminal offence, the Crown must prove his or her guilt “beyond a reasonable doubt”. At the same time, people are often confused over the exact meaning of the phrase “beyond a reasonable doubt”. In a criminal trial, the verdict rests on the meaning of these words.

The bad news is that there is no exact universally-accepted definition of the phrase “beyond a reasonable doubt”. Judges and legal scholars (also known as “jurists”) have been writing for centuries on the best way to explain exactly what the court means when they speak of a reasonable doubt. Individuals tend to “have a feeling” of what reasonable doubt is, but often find it very hard to articulate what the phrase means in the context of a trial. In R. v. Lifchus, the Supreme Court of Canada (“SCC”) stated that, in the context of a trial, the phrase “beyond a reasonable doubt” has a specific legal meaning which should not be confused with its ordinary every-day meaning. Thus, our understanding of reasonable doubt must be much clearer than a mere “feeling”; we must be able to articulate a definition of reasonable doubt so that the concept is applied in the same way by all judges and jurors. The good news is that a number of legal decisions have articulated to a much more precise definition of this important legal term.

Much of the debate over the meaning of the phrase “beyond a reasonable doubt” has evolved out of appellate decisions both in the provincial Courts of Appeal and in the Supreme Court of Canada. That is because the adequacy of a judge’s explanation to the jury as to the definition of “beyond a reasonable doubt” is an issue that often arises on appeal. In cases which are heard by a judge and jury, the judge must “charge” (i.e., instruct) the jury on points of law before the jury is sequestered to reach a verdict. One of the points of law upon which a trial judge must instruct the jury, is the meaning of the phrase “beyond a reasonable doubt”. Sometimes, the Crown or Defence may argue on appeal that the trial judge’s charge to the jury on this issue misled the jury as to the burden of proof, and that such error resulted in a miscarriage of justice. For example, in Lifchus, the judge instructed the jury to think of the concept of “reasonable doubt” in the ordinary everyday sense of the word. On appeal, the SCC concluded that this instruction misled the jury, and that instead the judge should have instructed them on the precise legal meaning of “reasonable doubt”. Appeals such as the Lifchus case provide further direction to trial judges on the meaning of the phrase “beyond a reasonable doubt”. These legal opinions lead us to a clearer understanding of the term.

The standard “beyond a reasonable doubt” requires more than a hunch that the accused committed the crime but less than absolute certainty. In the landmark case, Woolmington, the House of Lords (the highest court of appeal in England) described the standard as 75 to 99% certainty. Years later in the case R. v. W. (D.) the SCC had the opportunity to comment on the meaning of reasonable doubt. In W. (D.) the SCC considered the relationship between reasonable doubt and the case built by the defence. They concluded that the jury need not believe all of the defendant’s evidence to find that there is reasonable doubt as to his or her guilt. There is a danger that the jury will interpret reasonable doubt as coming down to an evaluation of who they believe more, the Crown or the accused. If the jury were to interpret the phrase that way, establishing “proof beyond a reasonable doubt” would require that the Crown do no more than built a case that is slightly more likely or slightly more credible than the defense’s case. In W. (D.) the SCC points out that this type of reasoning “excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonable doubt as to the accused’s guilt”. This could happen in situations where – despite the accused’s lack of credibility – the Crown case is simply too weak to support a finding of guilt. W. (D.) tells us a little more about the meaning of the phrase “beyond a reasonable doubt”, by explaining that if the jury (i) believes the accused’s evidence or (ii) does not believe the accused evidence but nonetheless is left in a state of reasonable doubt as to the accused’s guilt after considering his evidence in the context of the evidence as a whole, they must acquit.

During a trial, the burden of proof is on the Crown to prove that the accused committed the crime beyond a reasonable doubt. The Crown must establish all the elements of the offence beyond a reasonable doubt. For example, if the offence alleged is “assault causing bodily harm” the Crown would have to prove not only that an assault took place beyond a reasonable doubt, but also that the injuries inflicted during the assault meet the legal definition of “bodily harm” beyond a reasonable doubt. (Of course, an accused could be convicted of the included offence of assault.) Moreover, the Crown must also prove that the accused had the mens rea (or “guilty mind”) required to commit the offence beyond a reasonable doubt. For example, if the offence is assault, the Crown would have to prove that the accused intended to assault the victim beyond a reasonable doubt.

The high burden of proof placed on the Crown is a reflection of the presumption of innocence — the “golden thread that runs through the criminal law”. If the state does not discharge its duty and prove that the accused is guilty beyond a reasonable doubt, the presumption of innocence remains intact and the defendant must be acquitted.

On June 1^st, 2001 senior Toronto lawyers ( Toronto lawyers with ten years or more of experience) made headlines earlier this week when they voted to stop accepting legal aid cases dealing with homicide, gun, or gang related charges in Toronto. It is not the intention of the Toronto criminal defence bar that this decision be permanent. Rather, senior Toronto criminal lawyers are calling this a strike designed to call attention to the government’s serious underfunding of the Legal Aid program.

This controversial decision was not made without hesitation on the part of the defence bar. Rather, it has been about a decade in the making. Over the past ten years, Crown Attorneys have seen a 57 % pay raise while defence lawyers acting through legal aid certificates have experienced only a 15% hourly wage increase over the last five years following more than a fifteen years of cutbacks and wage decreases. Though these wage discrepancies are a factor in the strike, the gross salary received by defence lawyers for taking legal aid cases is only a minor element of the funding problems that have motivated this decision.

One of the greatest misconceptions about the strike is that the motivation behind it is greed on the part of the defence bar. This misconception is fuelled by a misunderstanding of the $77 – $98 hourly rate currently paid by legal aid to defence lawyers. It is understandable that members of the public would consider this to be a very high rate of pay. However, that conclusion is based on confusion about how defence lawyers allocate their hourly rate. Most people only have to deduct taxes from their hourly wage and the rest of the wage is retained for personal expenses. It is only natural to assume that the same goes for a criminal defence lawyer’s hourly wage. However, because of the way the practice of criminal defence is structured, most defence lawyers must use their hourly wage to cover all overhead and office costs. This means that, in addition to taxes, a lawyer must deduct from their hourly wage things such as:

• licensing and insurance fees;
• the cost of renting and maintaining their office space;
• all capitol costs for items such as computers, printers, fax machines, and office furniture;
• internet and phone accounts for their offices;
• the salaries ofr support staff such as secretaries, paralegals, and articling students;
• etc.

Once these deductions are considered, according to Frank Addario, president of Ontario’s Criminal Lawyers Association, the hourly rate paid by Legal Aid is actually “much closer to minimum wage”. To make matters worse, Legal Aid caps the number of hours a lawyer can bill per case. As a result, for a complex case which requires months of preparation, defence counsel may end up working hundreds of hours at no pay whatsoever. Some lawyers estimate that once these hours are factored in, lawyers often make less than minimum wage when they are working on complex Legal Aid cases.

Not wanting to withdraw their services entirely and leave the Legal Aid Program stranded, senior defence lawyers have chosen to focus the strike on homicide, gun and gang related charges. These tend to be the most complex cases that pass through the criminal justice system. They also tend to be the most glaring examples of how underpaid Legal Aid work can be, as these cases often require that lawyers work far beyond the Legal Aid cap. Moreover, these cases involve the use of expert witnesses, diagrams, models and other tactical aids — all of which must be commissioned and paid for out of the lawyer’s hourly wage. In addition, we hope that focusing on these types of cases will highlight the impact Legal Aid funding has on the quality of our criminal justice system. It has been suggested by many experts that the current inefficiency of our system, especially evident in the Greater Toronto Area, is a result of inexperienced counsel handling complex charges such as homicide, gun charges and gang-related charges. Through no fault of their own, junior lawyers often need more time to prepare for these types of cases and inadvertently cause more delays throughout the trial process. We hope to highlight this problem so that the government will be forced to increase funding and put these cases back in the hands of senior lawyers. Of course, these cases also get the most media attention, so we hope that by focusing the strike on these types of charges, public pressure will compel the government to consider our position and increase funding to Legal Aid.

In the end, it is the public’s best interest that funding to the Legal Aid program is significantly increased as soon as possible. We must have a criminal justice system where it is primarily senior counsels who handle the most serious charges. For one, this will increase the efficiency of the system. Even those facing minor charges will benefit by having their matters dealt with in a more timely fashion than is currently possible. More importantly, individuals charged with serious crimes face significant jail time, and accordingly they should have access to the best lawyers the defence bar can offer.

Prior to the strike, senior defence lawyers were taking on as many serious legal aid cases as possible within the constraints of salary and time. In fact, according to Addario, up until now defence lawyers have been “making the system work through donated services”. However, at the end of the day, like everyone else, there is only so much that lawyers can do for free, and the number of serious Legal Aid cases far outweighs the amount of time that can reasonably be “donated” by senior counsel. In our experience, almost every criminal defence lawyer goes into this profession with a desire to help people regardless of their economic situation. The number of Legal Aid cases accepted by senior counsel is a testament to this fact. However, there is a growing consensus in the profession that, at this point, the best way to help individuals who use the Legal Aid program is to withdraw some of our services temporarily with an aim of improving the system as a whole.

This strike is not only about increasing the hourly wage paid by Legal Aid so that individuals charged with serious offences can benefit from having access to the most experienced counsel possible. This strike also aims to increase overall funding to the Legal Aid System. It is important to remember that the government funds both the Crown Attorney’s Office and Legal Aid Services, yet there is a notable discrepancy as to the resources allocated to each side. For example, because of budget constraints, Legal Aid is only able to pay expert witnesses half of what they are paid by the Crown. As a result, the Crown has broader access to the most knowledgeable experts in any given field. Moreover, defence lawyers must apply to Legal Aid to have each expert approved, whereas the Crown has the resources to call as many expert witnesses as they deem necessary. The hours defence experts are paid are also capped, so that often defence experts, just like defence lawyers, end up working many hours for free in preparation for a trial. The problem surrounding the use of expert witnesses is just one of the many compelling examples which show that increased funding to Legal Aid is needed.

There is already a huge power imbalance between the state and the individual in the context of investigating a crime. Obviously, an accused person does not have access to a fraction of the resources the state may use to investigate a crime and collect evidence. In theory, the presumption of innocence counteracts this imbalance by placing a higher burden of proof on the state. However, the current deficiencies in the Legal Aid System work to carry the power imbalance between the state and the accused into the courtroom. We are left with a court system in which the Crown’s ability to prosecute far surpasses the lower-income accused’s ability to defend him or herself, both in terms of the tactics he or she may make use of (such as the use of expert witnesses) and in terms of the experience of his or her counsel. In Canada we pride ourselves on our universal health care system and yet we ignore the fact that, in many ways, we are operating within a two-tiered justice system where the rich have access to a much stronger and more effective defence than the poor. This means that income is rapidly becoming a silent factor in determining guilt or innocence. As such, defence lawyers across the province have initiated this strike to restore balance to the criminal justice system. The defence bar is disheartened by the growing gap between rich and poor defendants. Up until now, we have worked together, logging countless pro bono hours, to try and narrow that gap. However, the problem is too big for us to solve on our own. Regretfully, we find that the best course of action now is to stand back a little so that Parliament can see how serious the problem has become. Only they have the resources to fill the gap and give all Canadians equal access to justice.

In our experience as criminal defence lawyers, domestic assault charges are very common in Toronto courts. Individuals accused of domestic assault are often deprived of the support system usually provided by family either because of family discord or by the strict bail conditions routinely applied to those accused of domestic violence. Though these conditions are sometimes necessary to protect victims of domestic violence from retaliation by abusive partners, in other cases it is an unfortunate burden that an accused person must be separated from children, home and spouse as they await trial. Moreover, those facing these charges often find that the Toronto court system is very hard on those accused of domestic crimes. In the Toronto court system, the Crown has a zero tolerance policy when it comes to dealing with domestic assault charges. The trial process is further complicated by the special process the Toronto courts use to hear domestic matters. As criminal defence lawyers, we see first hand every day how complicated and discouraging this process can be for the thousands of men and women in the greater Toronto area accused of domestic violence each year.

What is Domestic Assault?

Domestic assault charges refer to charges which arise within the context of a domestic relationship. In other words, when an incident occurs between two or more individuals who are deemed by the Crown to be in a domestic relationship the resulting charges are labeled as domestic. A domestic relationship can be a relationship between a wife and husband (including commonlaw and same-sex partners), a girlfriend and boyfriend, children and parents (including step-children and adopted children), children and grandparents, or any other individuals who are related to one another.

Special Court Procedures

The Toronto court system segregates domestic matters from other types of charges. Domestic matters are all heard together on specific days at those courthouses which hear domestic cases. A court which hears domestic matters is referred to simply as “domestic court”. Courthouses which hold domestic court are listed below along with the dates, times, and courtrooms it takes place in:

• ¥ Old City Hall: Domestic Court every Monday and Wednesday at 2 PM in courtroom 114.
• ¥ College Park: Domestic Court every Friday at 10 AM and 2 PM in courtroom 505.
• ¥ 1000 Finch: Domestic Court every Monday and Wednesday at 9 AM in courtroom 301.
• ¥ 2201 Finch: Domestic Court every Mondays and Wednesday at 2 PM in courtroom 202
• ¥ Newmarket: Domestic Court every Tuesday at 9:30 AM in courtroom 102

The Crown Attorney in domestic court is often selected because he or she has a special interest in combating domestic violence. This usually means that he or she is an expert in this type of charge. It is highly recommended that an individual accused of a domestic crime retain criminal defence counsel as soon as possible to ensure that his or her rights are adequately represented in domestic court.

Special Programs

In many cases, the entire family is suffering because of the domestic charges. Often, it is everyone’s desire to put the charge behind them to restore the family unit. Because of the zero tolerance policy Toronto has adopted when it comes to domestic crimes, the complainant has no power or control over the proceedings once they have involved the police. For example, the complainant does not have any control over whether to press charges nor does he or she have the ability to stop the proceedings against the accused. Once the police are called the Crown and police will almost certainly press charges. The rationale for this attitude is to protect victims of domestic violence who attempt to withdraw charges out of fear for their own safety or the safety of their children. Unfortunately, in many cases these rules are detrimental to individuals who are forced into an artificial and prolonged separation due to an erroneous or minor charge of domestic violence.

In those situations involving minor charges such as an assault (not including an assault with a weapon, aggravated assault, or an assault which resulted in injury) where the accused has no criminal record, the Crown will often make an offer to the accused which would modify the accused’s bail to allow them to reunite with the complainant. In exchange the accused must plead guilty to the offence and undertake to attend a special counseling program. There are two such programs: PARS (Partner Assault Response Systems) and EIP (Early Intervention Program). These counseling programs typically run one hour a week for sixteen weeks. The program focuses on the nature of the domestic relationship and specific strategies for anger management in the context of a domestic relationship. At the end of the sixteen weeks, the program leader will prepare a report on the accused’s progress through the program. If the report is favourable, the Crown will likely agree to a request for a Conditional Discharge. A Conditional Discharge is a finding of guilt; however, it is not a criminal record. See our blog on Discharges for more information on this result. Though this option may sound appealing because it allows an accused person to reunite with their partner, it is important to remember that this does result in a finding of guilt being made against him or her by the court. We highly recommend that you consult with a lawyer before entering into either of these programs.

An information session on the PARS domestic assault program is held at the 1000 Finch courthouse on Tuesdays at 1 PM in courtroom 303.

When one of our clients is accused of a crime and taken into custody, our first responsibility as criminal defence lawyers is to help that client get out on bail. A justice of the peace (JP) will usually decide whether or not to let an accused person out on bail through a bail hearing. The bail hearing is conducted in a criminal court house. At the bail hearing the JP will assess whether the accused should be let out on bail by considering three criteria:

1. 1. If released, is the accused likely to appear in court or is he/she a “flight risk”?
2. 2. If released, is the accused a danger to the community, the complainant or his or herself? 
3. 3. Is it contrary to the public interest that the accused is released? Would a decision to release the accused on bail “shock the community”? (This is often an issue with usual or violent crimes that get a lot of media attention).

If consideration of these three criteria suggests that it would be ok to release the accused, the JP can grant bail and is free to impose any conditions he or she sees fit. Some examples of conditions which may accompany bail are:

1.  
   • a curfew, 
   • a duty to remain in a specific geographical area,
   • a duty to report to the police at regular time intervals, 
   • a duty to seek counseling or other forms of treatment, 
   • a duty to reside at a specific address, 
   • a condition that the accused not possess any weapons, 
   • a condition that the accused refrain from drinking alcohol, 
   • or a condition prohibiting the accused from communicating with the victim.

These conditions will be spelled out in a court order granting bail commonly referred to as a recognizance. 

Often, a JP will be more likely to release an accused on bail if another individual (either a friend or family member of the accused) agrees to sign the bail and act as a surety. A surety takes responsibility for the accused and promises that court that the accused will comply with certain conditions when released from custody. If the judge decides to assign bail, the surety will have to sign the recognizance. It is the surety’s responsibility to make sure that the accused person complies with the conditions in the recognizance and attends all court appearances. If the accused fails to meet these obligations, the surety may have to forfeit an amount of money specified in the recognizance. 

Who Can Sign Bail?

Not just anyone can act as a surety. There are several requirements an individual must meet to qualify as a surety:

•  
  • ¥ The surety must not be involved with the charge (i.e., a complainant or co-accused cannot act as surety)
  • ¥ The surety must be 21 years of age or older
  • ¥ The surety cannot have a criminal record
  • ¥ The surety must be a Canadian citizen or landed immigrant
  • ¥ The surety cannot be an employee of the accused person
  • ¥ The surety must be employed (with some exceptions)

In addition to these requirements, the JP must be satisfied that the surety is able to pay the amount of bail set out in the recognizance should the accused fail to comply with the terms of the bail. Sometimes the surety will be asked to deposit the amount of the bail at the time the accused is released and will have the money returned if the accused complies with the recognizance. More often, the surety must simply show using bank statements, RRSPs, savings bonds, etc. that he or she is able to pay the amount of the bail if necessary. In the end, the JP will decide if an individual qualifies as a surety and has discretion to waive some of the requirements listed above in special circumstances. The JP will also consider the character of the surety and their overall impression of how responsible and trustworthy the surety appears to be. During the bail hearing, the potential surety may have to give evidence or answer questions about their qualifications to act as a surety. It is very important to note that it is against the law accept payment for acting as a surety.

Duties of a Surety

The main duty of a surety is to supervise the accused person after they are released back into the community and ensure that the accused follows all of the terms and conditions of his or her recognizance. Another important duty of a surety is to make sure that the accused attends at all their assigned court dates. As an acting surety, you are also obliged to ensure that the accused does not commit any criminal offences after they are released on bail. If, at any point during your obligation as surety, it comes to your attention that the accused person has or is about to break a condition of his or her bail you are obliged to notify the police. These responsibilities begin at the bail hearing when the surety signs the recognizance and do not end until the accused’s case is completely over. In some cases, this can take a very long time (even several years), so an individual should not take the decision to become a surety lightly. If you are considering acting as a surety, we suggest that you obtain independent legal advice from a criminal defence lawyer before making such a commitment. 

If you do decide to act as a surety, and at some point during the course of your duties you find that you are no longer willing or able to act as a surety, there are steps you can take to relieve yourself from the obligation to act as surety. You can bring the accused person to court personally and ask that they relieve you from your obligation. Another option is to come to the court alone and apply in writing to be relieved of your obligation. In both cases, the accused will be rearrested should you decide to stop acting as their surety. If you believe that the accused person is a threat to your safety in any way, we recommend that you apply in writing to end your obligation as surety and do not attempt to bring the individual personally to court.

Forfeiting Bail

If you decide to act as a surety you may be forced to forfeit the bail amount specified in the recognizance. If the accused fails to appear for a court date or fails to comply with a condition specified in the recognizance, the Crown may ask that the court direct you to pay the money you committed as bail for the accused. If the Crown makes such a request, a hearing will be scheduled. This type of hearing is referred to as an estreatment. During the estreatment, you will have an opportunity to tell the court your side of the story and explain why you should not have to forfeit the amount of the bail. In the end, the JP will order that you pay all, none or part of the bail amount. If this happens, the accused will likely be returned into custody, and your obligations as a surety will end. 

In our criminal justice system, every individual is presumed innocent until proven guilty. When an individual is facing criminal charges, until he/she is proven guilty, he/she should not be denied his/her freedom unless there is a good reason for doing so. By acting as a surety for an accused person, you play an important role in the criminal process and you help a friend or family member during through a very difficult period in their lives. That said, it is a significant responsibility and you should be fully informed before pledging to act as a surety. If you have any questions about acting as a surety, contact one of the criminal defence lawyers at our office by calling 416-658-1818.

What is a Discharge?

If you are charged with a criminal offence, the criminal defence lawyers at Kostman & Pyzer, Barristers will endeavor to help you avoid a criminal record. One of the ways this can be accomplished is by obtaining a discharge under s. 730(1) of the Criminal Code. A discharge is a disposition from the Court after a finding of guilt which does not constitute a conviction and is not a criminal record.

Eligibility

Not every accused is eligible for a discharge. Discharges are only available to individuals; thus, an organization such as a corporation which has been charged with an offence cannot obtain a discharge. In addition, a discharge is only available in response to a particular category of offences. For the purposes of obtaining a discharge there are three categories of offences.

1.    Prescribed by Law – You cannot obtain a discharge for offences for which a minimum punishment is prescribed by law. For example, under s. 85(3) of the Criminal Code, using a firearm in the commission of an offence carries a minimum sentence of one year for a first offence. An individual charged under s. 85(3) would not be eligible for a discharge. Some other examples of crimes which carry minimum sentences include: knowing possession of an unauthorized firearm (second offence), possession of a weapon obtained by crime, possession of weapons for the purpose of trafficking, sexual interference, sexual exploitation of a person under 14, inviting sexual touching of a person under 14, possession of or accessing child pornography, betting, pool-selling, book-making, placing bets on behalf of others, obtaining the sexual services of a person under 18, murder, manslaughter with a firearm, attempted murder, sexual assault with a weapon, aggravated sexual assault with use of a weapon, kidnapping, hostage taking, robbery with a firearm, extortion.

2.    Offences Punishable by Fourteen Years or Life – You cannot obtain a discharge for a crime which can carry a minimum sentence of fourteen years or life. For example, pursuant to s. 745(a) of the Criminal Code first degree murder carries a mandatory sentence of life in prison. Some other examples of offences in this category include: hijacking, endangering an aircraft, several offences involving explosives, bribery of a judicial officer, perjury, fabricating evidence, incest, criminal negligence causing death, murder, manslaughter, attempted murder, accessory to murder, discharging a firearm with intent to kill, dangerous driving causing death, failing to stop at the scene of an accident knowing a person is dead, impaired operation of a motor vehicle causing death, aggravated assault, torture, sexual assault with a weapon, aggravated sexual assault, kidnapping, human trafficking, hostage taking,  criminal breach of trust, robbery, extortion, break & enter with intent, some forms of fraud, willful mischief endangering life, arson, making counterfeit money, possession of counterfeit money, conspiracy to murder, commission of an offence for a criminal organization.

3.    Other – All other offences may be resolved by way of discharge should the court see fit.

If you are charged with an offence for which a discharge is available certain criteria must be met in order to obtain a discharge.

1.    There must be a finding of guilt either as a result of a guilty plea or a finding of guilt after trial, and the offence must be one in which a discharge is eligible.

2.    The discharge is in the accused’s best interest and

3.    Ordering a discharge is not contrary to the public interest.

In determining whether a discharge is in the accused’s best interest, a judge is at liberty to consider factors such as:

•    whether the accused has been granted a discharge in the past,
•    the accused’s character,
•    the accused’s criminal history
•    whether it is necessary to enter a conviction against the accused to deter him/her from offending in the future
•    whether it is necessary to enter a conviction against the accused in order to rehabilitate him/her, and
•    that the entry of a conviction against the accused can have significant repercussion for him/her (e.g., social stigma, difficulty finding a job, etc.)

In considering whether ordering a discharge is not contrary to the public interest, a judge must consider whether a discharge should be entered to deter the general public from committing a similar offence. The overall objective of a discharge is to avoid ascribing a criminal record to an accused where the circumstances and overall character of the accused mitigate against such a disposition. A judge’s decision to order a discharge is thus very individualized depending on the accused person before them. Discharges are not applied routinely to particular crimes, nor are they more common for youth offenders than for mature offenders. The decision to grant a discharge is case specific.

Types of Discharges

There are two types of discharges which a judge can dispense. The first is an absolute discharge. Though an absolute discharge is a finding of guilt, no action is taken by the state following such an order. The individual is essentially free to go. Though the discharge is recorded by the Canadian Police Information Center, it is not entered on an individual’s criminal record. According to the decision in Bram absolute discharges should be used sparingly to deter the general public from committing crimes. However, the court in Bram also specified that absolute discharges should not be limited to the most minor of offences. Rather, this type of discharge is available for any offence in the category of offences which may be discharged.

The second type of discharge is a conditional discharge. Like absolute discharges, conditional discharges do not appear on your criminal record. However, following release on a conditional discharge, the accused will be required to undertake certain specified actions for a maximum period of three years. Some examples are:
•    a requirement that the accused undergo counseling
•    a requirement that the accused enroll in a substance abuse program or obtain treatment for substance abuse, and
•    a requirement that the accused complete a certain number of hours of community service.
Like an absolute discharge, a conditional discharge is recorded by the Canadian Police Information Center, but will not appear as a conviction on your criminal record.

Repercussions of a Discharge

The most important aspect of a discharge is that it is a finding of guilt not a criminal conviction. An individual who receives a discharge will have a criminal record within the meaning of the Criminal Records Act. The offence for which the discharge was granted will not appear as a conviction on that record however it will be temporarily noted on your criminal record as a discharge. The RCMP is obliged to remove all references to a discharge from your criminal record after 1 year for an absolute discharge or 3 years for a conditional discharge. A discharge cannot be taken into account in the future during sentencing for a subsequent conviction.

However, there are some negative consequences associated with a discharge. Though an absolute discharge may not interfere with your ability to travel to the United States, a conditional discharge may impede that ability (see Emigration (U.S.) Consequences of a Criminal Conviction). Moreover, the fact that you have received a discharge from a first offence may make it less likely that the court will grant you a discharge from any future offence. Finally, there are consequences for breaching the terms of a conditional discharge. If you are issued a conditional discharge, you are essentially on probation for the term specified in the conditions. If, during this time you fail to comply with the conditions or commit another criminal offence, you may be charged with the criminal offence of “Failure to Comply with a condition of Probation”.

If you are charged with a criminal offence, the criminal defence lawyers at Kostman & Pyzer, Barristers can assist you to obtain a discharge and keep your criminal record clean. If you have any questions about the implications of an existing discharge or are facing criminal charges, contact us at 416-658-1818.

The Ontario government has recently made some important changes to the laws governing impaired driving. At Kostman & Pyzer, we are often approached by individuals who have been charged with an drinking and driving- related offence such as “impaired driving” or “over 80”. These individuals face criminal charges which can result in driving suspensions, fines, and jail time. If you are facing one of these charges and you contact our office, we will fight for your rights and make full answer and defence to these charges.

However, the new laws regarding drinking and driving are not aimed at traditionally criminal behaviour and operate differently than the criminal charges usually faced by our clients. The new rules do not target drivers who are found to have a Blood Alcohol Concentration (“BAC”) over the legal limit (0.08). Rather, they target individuals who are found to have a BAC between 0.05 and 0.08. This is traditionally referred to as the “warn range”. Before May 1st, 2009, drivers found operating motor vehicles with a BAC in the warn range were given a warning and received an automatic 12-hour driver’s license suspension. This course of action was taken no matter how many times an individual was found with a BAC in the warn range.

As of May 1, 2009, the procedure for dealing with individuals found driving with alcohol levels within the warn range has changed significantly. Individuals now face increasingly stringent consequences each time they are caught within the warn range.

First Infraction

• 3 day license suspension
• $150 fine.

Second Infraction (within 5 years)

• 7 day license suspension
• Mandatory alcohol education program
• $150 fine.

Third Infraction (within 5 years)

• 30 day license suspension
• Mandatory alcohol education program
• 6 month ignition interlock condition placed on driver’s license for six months. (This condition means that the individual cannot drive any car that does not have an ignition interlock system installed for sixth months from the infraction).
• $150 fine.

Subsequent Infractions (within 5 years)

• 30 day license suspension
• Mandatory alcohol education program
• Mandatory medical evaluation
• 6 month ignition interlock condition placed on driver’s license for six months. (This condition means that the individual cannot drive any car that does not have an ignition interlock system installed for sixth months from the infraction).
• $150 fine.

The new penalties are imposed automatically based on the results of a roadside breath test. If that test registers a BAC in the warn range, your license can be immediately suspended by the police. The officer on the scene will confiscate your license and send it to the Ministry of Transportation. You will not be able to drive home. If there is a sober, licensed alternative driver in the vehicle, that individual can drive you home. If not, you will have to leave the car on the side of the road. If you are pulled over in an unsafe location, the police will have the vehicle towed at your expense. When the suspension period ends, you will receive a reinstatement notice in the mail which will usually include a Temporary Driver’s License (unless there are other outstanding issues with your license). You may then go to a Driver and Vehicle License Issuing Office to pay the $150 fine, after which a new license will be issued to you through the mail.

Unlike the traditional drinking and driving charges mentioned above (“impaired driving” or “over 80”), individuals found driving with a BAC in the warn range do not have a right to a trial. There is no mechanism available to appeal this type of roadside license suspension. These suspensions will appear on your driving record. They will be considered for up to five years in determining penalties for subsequent infractions. These infractions may also carry insurance consequences. However, it is important to note that these infractions are driving infractions and not criminal convictions and as such they will not appear on your criminal record.

Contact the law office of Kostman & Pyzer, Barristers, to protect your rights