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General Information
Arrest, Police Questioning, and Release
If you are stopped by police, called by the police, invited or brought to a police station be aware that the police will almost certainly want to ask you questions. You do not have to answer any questions, and in the vast majority of cases it is not to your advantage to do so. It is true that whatever you say may be used against you. It is the Crown’s duty to prove that you are guilty. Speaking to the police about what happened may actually help the Crown's case against you. Even if you are innocent, your admission that you were the driver or that you were present at the scene of the crime may become the only way that the Crown can prove an essential element of its case.
It is also highly unlikely that you or a relative will be able to appeal to the mercy of the police and talk them out of laying a charge. It often goes against our instincts to not cooperate with the police. Honesty and co?operation are normally good character traits in our society, but answering police questions or volunteering information may prove harmful in the end. Do not resist arrest. Be polite. If you decide to answer a question, tell the truth. Otherwise, resist the temptation to tell your side of the story. You are now a suspect, and this means you are walking on thin ice.
Contact us at (613) 244-4488, or in the evenings and on the weekends at (613) 850-9332 for free emergency legal advice either before going to the police station or at the police station. If you can't reach anyone, ask the police to call the toll free number 1-800-265-0451 for 24 hour duty counsel. The duty counsel is available to assist accused persons phoning from the police station. The 24 hour duty counsel will not assist parents or relatives.
After dealing with you, the police may decide to release you by giving you an appearance notice or promise to appear. This document will require that you attend for photographs and fingerprints on a specific date. The document will also require that you attend Court on a specific date.
If you don't appear as required a bench warrant will be executed for your arrest and you will be charged with the offence of failure to appear. Once arrested you will find it difficult to obtain bail.
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Criminal Records
In Canada, there is a difference between a finding of guilt and a conviction. After a person is found guilty of some offences the Court must decide whether it will enter a conviction. The Court may consider that it is in the best interests of the accused and not contrary to the public interest to not enter a conviction, but instead to grant an absolute or conditional discharge. So, although found guilty, someone who receives an absolute or conditional discharge may truthfully say that they have not been convicted. The R.C.M.P. and the local police service do keep records of the absolute or conditional discharge. These records may be used against you during police investigations, bail hearings, sentencing, and as a witness. After about a year, a request should be made to the R.C.M.P. and the local police to confirm that these records have been purged.
If you are convicted, not discharged, the records kept by the R.C.M.P. and the local police may be used against you during police investigations, bail hearing, sentencing, as a witness, and by a prospective employer or bonding company. Several years after sentencing you should consult a lawyer to determine if and when a pardon is available under the Criminal Records Act. Once a pardon is obtained you should ask your lawyer to contact the R.C.M.P. and the local police service to determine if their records have been purged. For more information on pardons, you can go to the National Parole Board website.
Contact us at (613) 244-4488 to arrange an appointment for a consultation to determine the impact of the Criminal Records Act in your own case, the appropriateness of a pardon application, and assistance in requesting that police purge their records.
The impact of a Canadian criminal record on travel, study, and employment in the United States is governed by the American Immigration and Nationality Act. Reynolds, Dolgin LLP would be happy to assist you in applying to the United States Immigration and Naturalization Service for a "waiver" to permit you to enter the United States notwithstanding your Canadian criminal record.
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When To Plead Guilty
Pleading guilty to a criminal charge is a very, very serious matter. You will have a record of a finding of guilt or a conviction for the rest of your life, unless you are able to obtain a pardon, something which is not available in all circumstances. If you get a conviction, you may never be able to obtain or maintain employment as a teacher, police officer, professional, or government employee.
For a drunk driving offence in Ontario you will automatically lose your driver's licence for at least one year, with significant repercussions for your career and your family. If you get caught driving while suspended you will go to jail and your car will be impounded.
You may go to jail, especially if it was an employee theft, a breach of trust, a spousal assault, a weapons charge, a politically incorrect offence, or if someone got hurt. You may be obliged to pay a fine, or do a lot of probation. You may never be able to visit the United States again.
So, before pleading guilty to “get it over with”, you should take some time to think about things. Reynolds, Dolgin LLP provides a free initial consultation to help you understand your rights and the best course of action. Contact us at 613-244-4488, or in the case of an emergency after hours at 613-850-9332.
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Character Reference Letters For Use During Sentencing
If you are pleading guilty or have been found guilty of a criminal offence, you will be sentenced. You may need several character reference letters for use during sentencing from people who know your general character and reputation in the community, and will vouch for you. The idea is to convince the judge that you are a good person, that you feel sorry for what you have done, and that you will not do it again.
Good candidates for character reference letters include: long-time family friends, a pastor or priest, a sports coach, fellow employees or an employer, and leaders of community and cultural organizations that you belong to. Be sure to be honest about what happened, including your version and the victim’s version of events. Let them know how you’re feeling, and what may happen to you when the judge decides on a sentence.
The best letters are from well-respected people, and they explain how long the author has known you and in what capacity. The letter will be more effective if the author indicates that he or she has seen you recently and frequently in situations of trust and responsibility. A family member can sometimes be one of several references especially if they are able to report on the individual's long term struggle with a particular problem.
A victim can write a letter, but only of their own volition, NOT AT THE REQUEST OF THE ACCUSED. Do not initiate contact with victims, either directly or indirectly. You may, in fact, be in violation of a bail order prohibiting such contact.
Do not play down your behaviour, or otherwise attempt to minimize the seriousness of the offence. You should acknowledge how serious the offence is, and the impact it has had on the victim and others.
The letter should be requested directly by the accused, not by a parent, spouse, or anyone else. In any event, by approaching the author of the letter yourself you will be better able to convince him or her that you accept responsibility and feel remorse.
Address the letter "To the Court", "To the Honourable Judge", to the defence lawyer, or "To Whom it May Concern". Type it on good quality paper, and don’t forget to have the person SIGN it. A faxed letter is fine, if the character reference is far away. There should be two additional copies, one for the defence lawyer and one for the Crown attorney. The original is for the Judge and the copies are for the lawyers.
DO NOT let the accused or his mother type all the letters up in advance and simply ask people to sign them. The author of the letter should prepare it independently of the accused or her parents. Multiple letters should not all be in the same font with the same structure as each other.
DO NOT, however, give a copy to the Crown Attorney or the original to the Judge until you have shown the letter to your defence lawyer or to duty counsel. Sometimes a letter will do more harm than good and you need good legal advice before you use it.
Be careful, though. Anything you say to your character reference MAY BE USED AGAINST YOU IN COURT. They may decide in certain circumstances to pass the information on to the police. Some individuals, such as psychologists, may have a professional responsibility to reveal information you thought was confidential, such as other child sexual abuse that the police and Crown do not know.
Your reference is usually welcome to attend Court if he or she wishes. They usually won't be asked to give evidence but your lawyer may find their attendance of assistance in explaining a unique situation to the Crown or the Court. A reference letter author who attends Court should dress appropriately, in their best attire.
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Pleading “Not Guilty” Even If You Did It
Can I plead "not guilty" even if I did it?
Yes. A plea of "not guilty" simply means that you are insisting that the Crown prove its case. In Canada, a person can be found guilty if he or she either pleads "guilty" or the Crown proves its case beyond a reasonable doubt. In any given case, there will be numerous legal issues requiring proof. Many times, the Crown will not be able to prove its case because it does not have proper evidence regarding a certain element of the offence. In such cases, the accused person will be found "not guilty". A lawyer who does a thorough job in preparing the case will often be able to identify where such difficulties are likely to arise.
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What is "plea bargaining"?
Plea bargaining is the process whereby defence counsel and Crown counsel attempt to resolve a case without a trial. It usually results in a guilty plea by the client in exchange for the Crown taking a position regarding the sentence that is acceptable to the client. Of course, it is the judge that ultimately decides the sentence. Sometimes, in fact, a judge will be involved in the plea bargaining process. That is to say, the judge will be "in on the discussions" between defence counsel and Crown counsel and will provide input regarding the appropriateness of the proposed resolution. Pleabargaining does not always result in a guilty plea. In some instances, it can result in the withdrawal of the charge. A diligent defence lawyer will thoroughly prepare his or her case before entering into the plea bargaining process. This allows the lawyer to know the strengths and weaknesses of thecase and, therefore, effectively gauge the appropriateness of a proposed resolution. Of course, the lawyer should always keep the client advised and seek informed instructions before entering into a plea bargaining discussion with Crown counsel.
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