FAQ
The following is intended for general information purposes only and is not intended as a substitute for legal advice. Consult a lawyer immediately if you have been charged with a criminal offence to obtain advice about your particular circumstances. James Zegers is available at 519-673-0440 for a free initial consultation.
The police want to talk to me. Do I have to give a statement?
No one is obliged to give a statement to the police. If you are a suspect in a criminal investigation you should consult a lawyer before making any statements. In most cases you will be advised not to make a statement. Any thing you say can and will be used as evidence against you. Usually the police are not looking for evidence that establishes your innocence.
Do the police have the right to stop and search me?
Section 9 of the Canadian Charter of Rights and Freedoms guarantees the right not to be arbitrarily detained or imprisoned. Section 8 likewise guarantees the right to be secure against unreasonable search or seizure. Combined these sections provide protection against arbitrary detention and unreasonable searches. A personal search is only lawful if it is pursuant to a lawful arrest based on reasonable grounds.
However, the police are free to approach individuals and make inquiries that fall short of detention all the while making observations that form part of reasonable grounds to arrest. For the average citizen, interaction with the police can be very intimidating.
Evidence found as a result of an illegal search may be excluded at trial by bringing an application pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.
The police want to search my house. Do I have to let them in?
The police are required to obtain a search warrant before they enter a house to conduct a search. If they do not have a warrant, they can only enter with your consent, unless there are exceptional circumstances such as a life or death emergency, or fresh pursuit of a criminal suspect.
A warrantless search of a residence is prima facie unreasonable and evidence obtained as a result of such a search may be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.
I have been charged with a criminal offence. What happens next?
Being charged with an offence is the first step in the criminal justice process. This process is understandably intimidating to those unfamiliar with the system. At every stage crucial decisions need to be made. Effective representation at each stage of the process is the key to a successful outcome.
When you are charged with an offence you will be given a date to attend court. This is referred to as the first appearance.
The first appearance is not a trial. The witnesses or investigating police officers involved will not be there. It is not your opportunity to advance your defence. The main purpose of the first appearance is to obtain details of the allegations against you.
The Crown Attorney is obliged to provide you with full details of the allegations against you and provide you with all evidence in their possession with respect to these allegations.
Subsequent appearances will be necessary to review the evidence, obtain further evidence if necessary and enter into discussions with the Crown Attorney with respect to negotiating a resolution of the charges or narrowing trial issues.
The Crown Attorney is prepared to withdraw an assault charge against me if I am prepared to enter into a peace bond. What does this mean?
In appropriate cases the Crown Attorney may be prepared to withdraw charges in exchange for the accused person agreeing to enter into a section 810 recognizance, more commonly known as a “peace bond.”
A person entering into a peace bond agrees to keep the peace and be of good order for a specified period of time, usually one year. In addition, the peace bond usually requires the person entering it to comply with a condition not to associate or communicate with named individuals.
A peace bond is often an excellent way to resolve allegations of assault, mischief, and uttering threats. The complainant gets the comfort of knowing that the accused will not be allowed to communicate with him or her for a prescribed period of time, and the accused has a criminal charge withdrawn without the expense and uncertainty of the trial process.
Entering a peace bond does not require the accused to make any admissions of wrong doing. However, breaching the terms of a peace bond is a criminal offence.
I have been charged with impaired driving and driving over 80. What should I do?
“Drinking and driving” law is extremely complicated and every case presents unique challenges. Successful defences often turn on the legality of the initial police stop and whether or not the arresting officer had sufficient grounds to make the arrest. Careful review of the evidence is crucial to a winning strategy.
I have been charged with shoplifting. Will I get a criminal record?
If you are a first time offender you should be eligible for the Direct Accountability Program. This program allows you to complete community service and/or rehabilitation programs in exchange for the withdrawal of the charge.
The Direct Accountability Program is an alternative measures program directed by the St. Leonard’s Society in London, Ontario. The DAP program is an appropriate way to deal with first time offenders who are alleged to have committed relatively minor crimes, such as shoplifting and property damage. The program requires the accused to accept responsibility for the acts that brings him or her to court and further requires participation in a community service or rehabilitation program. Upon successful completion of the program the charges are withdrawn and the accused has no criminal record as a result.
I have been charged with domestic assault. What does that mean?
A domestic assault is an assault committed by a partner in a relationship where the partners are either currently or formerly in a spousal or “dating” relationship. The Criminal Code does not classify domestic assault as a separate offence. However in London and other jurisdictions the domestic assault prosecutions are treated much differently than other types of assault. Police services have very little discretion when it comes to laying charges, even in the absence of independent proof. If you are charged with domestic assault you can expect to be held in custody for a bail hearing, even if you don’t have prior convictions. And when released on bail you can expect to be prohibited from returning to the matrimonial home and subject to strict bail conditons.
London offers an Early Intervention Program which allows an accused to plead guilty and have his or her bail terms modified while he or she completes anger management and relationship counseling. Often the bail terms are modified to allow the accused and the complainant to communicate and even reside together while the charges are before the court.
Upon successful completion of the Early Intervention Program the sentencing judge usually grants the offender a conditional discharge, whereby a finding of guilt is made but no conviction is registered.
A family member is suffering from mental illness and as a result is involved in the Criminal Justice System. What can I do for him?
London has a special court set up for young offenders and adults who come into contact with the justice system as a result of mental health issues. The Therapy Court has trained mental health workers who assist the Crown Attorney and defence counsel to come up with solutions for individuals with mental health issues who find themselves in conflict with the law. Often the charges can be dealt with by way of diversion and withdrawal of charges.
Can a jail sentence be served on weekends?
Where the court imposes a sentence of ninety days or less the court may, having regard to the age and character of the offender and the nature of the offence, order that the sentence be served intermittently.
Typically an intermittent sentence is served on weekends. Often an accused goes into custody on Friday evening and is released on Monday morning, which counts for four full days of custody.
Many jails have intermittent community work programs that allow individuals serving weekend sentences to perform community service on weekends instead of going into custody.
Intermittent sentences are usually available only for people with full time employment. Sentencing judges scrutinize these applications carefully, so it is important to provide proof of employment, including letters of employment and pay stubs.