Toronto Criminal Lawyers Blog

Facing criminal charges can be intimidating and stressful. One of the first obligations the court puts on an individual accused of a crime is to “retain counsel”. In other words, the court hopes that you will find a lawyer as soon as possible to help you with your case. We strongly encourage you avoid representing yourself (see our blog on “The Self-Representing Accused” for more information on the dangers of representing yourself at trial). However, we understand that choosing a lawyer can often seem like a daunting task. There are so many lawyers to choose from and there are so many factors to consider. Here is some advice on how to sort through all the information to choose the ideal lawyer for you.

The first thing to keep in mind is that if you are facing criminal charges you should be looking for a criminal defence lawyer. You may already have a lawyer who looks after your business, taxes, will or other matters. However, finding a lawyer is not like finding a family doctor — one lawyer cannot deal with all your legal problems. The type of lawyer you select should correspond to the problem you are facing. Though there are some lawyers who do not specialize in criminal law who will take criminal law cases, most lawyers only practice in one area of law. When you begin searching for a lawyer to represent you in your criminal charges, you can make your search much easier by limiting it to criminal defence lawyers from the outset. Moreover, it is in your best interest to select a lawyer whose focus is criminal law. Criminal charges can jeopardize your livelihood and liberty, so you want to make sure that the individual who represents you is an expert in criminal matters.

Once you have limited your search to criminal defence lawyers, you will notice that there are a lot of factors which differentiate between individual practitioners of criminal law. People wading through all the information on the different lawyers out there often choose to focus on factors such as age, what law school the lawyer attended, and what firm the lawyer works with. These factors are largely irrelevant. Some young lawyers have excellent success rates — far outshining older lawyers. Some of the best lawyers choose not to work in large firms and prefer to work as sole practitioners for lifestyle reasons that have nothing to do with their legal competence. Finally, excellent criminal defence lawyers, judges and legal scholars have graduated from every Canadian law school. At the end of the day, the most relevant factors when it comes to choosing a criminal defence lawyer are cost, personality and experience.

Your budget will be a major determinant of what lawyer you retain. However, this is not necessarily a bad thing. It is simply not the case that all the good lawyers are incredibly expensive. Moreover, some of the best lawyers in and around Toronto do a great deal of Legal Aid case work. If you do require Legal Aid, you should inquire at the Legal Aid Office closest to you about obtaining a list of lawyers in your area who take Legal Aid cases.

If you do not require Legal Aid, you must decide how much you are willing to pay for a lawyer. Remember that in some cases, a good criminal defence lawyer may be the most important investment you make in your life, as your criminal defence lawyer is the most significant person standing between you and a criminal record, large fine, conditional sentence and/or, most importantly, jail time. With that in mind, make a generous but realistic determination of what you can afford. Try asking yourself two questions: (1) “how much do I want to pay for a lawyer?” and (2) (depending on the type of charges you are facing) “how much can I pay to avoid going to jail?” or “how much can I pay to avoid having a criminal record?” or “how much can I pay to avoid these charges interfering with my ability to see my children on a regular basis?”. You should aim to find a criminal defence lawyer who charges somewhere between the answer to question (1) and the answer to question (2). Most lawyers will want to meet with you before they give you an estimate of how much your matter will cost. This is because they often have to hear the full story before they can estimate how much time and effort your matter will require. This method is in your best interest as well since the best way to learn important information about a potential criminal defence lawyer, most notably their personality, is to meet with the lawyer in person.

Personality is an important factor to consider when choosing a lawyer. You want someone who you feel comfortable with, as you will have to communicate with your lawyer consistently throughout the trial process. You also want someone who strikes you as being competent and trustworthy. Remember that this lawyer is going to be representing you in court, so if he or she doesn’t make a good first impression when you meet, he or she probably will not make a good first impression on a judge either. Other factors to look for are common sense (as your lawyer will be helping you make important life decisions) and discretion (as you will have to trust your lawyer with some of your most private personal information).

Finally, it is important to look to experience when choosing a criminal defence lawyer. By experience we do not necessarily mean age or even the total number of years the lawyer has been practicing. Rather, we mean the lawyer’s experience dealing with cases similar to your own. A lawyer who has been practicing for five years, but has accepted a high volume of weapons-related cases is far more useful to an individual facing a weapons charge than an individual practicing twenty years but taking mostly impaired driving cases. The lawyers at our offices, for example, specialize in drug-related charges, weapons-related charges, domestic assault charges, drinking and driving charges, theft charges and fraud charges. We also represent a lot of young offenders. If you have outstanding charges in any of these areas, or other similar areas, we invite you to contact our offices by calling 416-658-1818 to arrange a meeting with one of our lawyers.

The PARS Program — which stands for Partner Assault Response Services — is an important component of Ontario’s Domestic Violence prosecution strategy. It consists of a specialized counseling and educational service for those individuals who are found guilty of a domestic violence-related offence. Upon a finding of guilt, the individual will be referred to PARS either by the Domestic Violence co-ordinator or by the Probation and Parole office.

The PARS Program lasts sixteen weeks in total. During those sixteen weeks, participants learn about appropriate behaviour towards their partner and non-violent ways to deal with their anger. Participants are expected to attend the program for one hour each week. The program is available in both English and French, and translator services can be provided for most other languages.

In order to be eligible for the program, the offender must be at least 18 years old, must be referred by a courts or probation office and must agree to participate in the program. Participation in the PARS program is voluntary. However, Toronto courts will often give individuals charged with an offence an incentive to participate in PARS, by offering a reduced sentence or probation if the accused individual agrees to enter the program. In most cases, before an individual is eligible for PARS there must be a finding of guilt against them. In some cases, an individual may participate in the program on the understanding that upon successful completion, they will receive a Peace Bond. As criminal defence lawyers, we always strive to avoid a finding of guilt for our clients and urge them only to enter the PARS program if they understand that although an absolute or conditional discharge does not constitute a criminal record, it is a finding of guilt and will show up as such on CPIC the police database.

Those who live in the Toronto Area and want to learn more about the PARS program can attend an information session on the PARS Domestic Assault Program held at the 1000 Finch courthouse on Tuesdays at 1:00 p.m. in courtroom 303. You may also call 1-888-579-2888 (outside Greater Toronto Area) or 416-314-2447 (inside Greater Toronto Area) to get more information and find the PARS location nearest you.

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.