If I am facing one or more criminal charges, do I need a lawyer for Court?
The short answer is yes. A person who tries to fumble alone in the dark through our Criminal Justice System is extremely vulnerable, and most likely has a fool for a client. Many of the Honourable Judges in our Criminal Courts are former Crown Prosecutors and some are more conservative than others in applying the concepts of reasonable doubt, presumption of innocence and burden of proof.
Your defence lawyer, in part, is paid to understand the many complexities of our Criminal Law in terms of content and the procedures our Courts have adopted day in and day out. And this includes an understanding of how a particular Judge will likely handle a trial or a sentencing where there is a finding of guilt.
And this very human fact of life in our Criminal Courts coupled with the over enforcement of minor offences by our local Police, results in a deck that can be stacked against an accused person.
When appearing before a Judge sitting alone, or in some cases when facing a Queen’s Bench Judge sitting with a Jury, you need the best criminal defence lawyer that you can obtain.
And when you retain legal counsel, it also is a question of the right fit in terms of personality, as well as securing the services of a criminal lawyer who has the experience and ability to obtain the best possible result.
The consequences of a criminal record on travel to the U.S. and other countries, continues to be a very important concern to most individuals facing one or more criminal charges.
As well, the modern day job market does not hesitate to require a criminal record check in addition to your submitted resume. In many ways, a sentence that may include a fine or jail or some period of probation is much less important in terms of lasting consequences, than a criminal conviction and a formal record that lasts indefinitely if not pardoned.
What does it cost to hire a Criminal Defence Lawyer?
Canada is a unique mix of capitalist ideas and socialist safety net programs like universal health care that feels “free” most of the time. Ultimately our “free” programs are paid by millions of hard working Canadian tax payers like you and me.
Lawyers who practice exclusively in the Criminal Courts are a unique breed. These Lawyers are the “Barristers” of old England who appear before Judge and Jury to make respectful submissions to advance the best possible defence, and who will remain focused on any mitigating circumstances where there is a finding of guilt either by plea or after a trial.
Many lawyers in Canada who do the work of “Solicitors” are busy practicing real estate law or family law or corporate law or civil litigation; and may have little or no courtroom experience in the adversarial arena that constitutes a Criminal Trial.
A lawyer of some experience and talent in the Criminal Courts will decide for him or herself, what to charge the client based on the market demand for that particular lawyer’s services.
I think a client is best served by knowing the total fee near the beginning of the lawyer-client relationship after assessing whether a trial is necessary, or whether the client is better served by a plea negotiation that in some cases can minimize punishment and in other cases can avoid a criminal conviction all together.
Do Most Criminal Lawyers Accept Legal Aid?
If you or a loved one is facing a criminal charge and is currently in a state of financial hardship because of a shortfall respecting employment income or due to an ongoing disability, you may qualify for Legal Aid coverage.
The Government of Alberta through the Legal Aid Society of Alberta (similar programs in B.C. and Saskatchewan and other Provinces) will guarantee payment on a tariff system to the appointed Defence Counsel who has an option whether or not to accept a Legal Aid case. The client will make an arrangement for repayment with Legal Aid usually by way of monthly payments.
I have helped many Legal Aid clients over the past twenty years. A current problem with Legal Aid in many Provinces is a lack of funding. If Legal Aid is of a “view” that your case will not likely result in a jail term, funding will most likely be refused.
Consequently, many people in Canada accused of criminal offences and presumed innocent under our system of Criminal Justice, now find themselves between a rock and hard place because of Legal Aid cutbacks and approval restrictions.
Many Legal Aid certificates restrict lawyer interview time to one hour with the client, and impose other limits on research time that can hamstring a defence lawyer’s ability to give full answer and the best possible defence.
As a general rule, I believe it is preferable to hire your defence lawyer privately. I will consider your financial situation when assessing fees and I will consider flexible payment options. In some limited circumstances, I will accept a legal aid certificate where a client requests me specifically during the Legal Aid application process.
What should I expect at the first Court Appearance?
I appear for most of my clients at first appearance unless they are in custody and in need of a bail hearing to secure their release. Many of my clients are too busy working to attend the first appearance. Normally a criminal case is delayed for at least one month or longer to obtain the case report from the Crown Prosecutor’s office which we refer to as “disclosure”.
Adjournments may be required to ensure that the disclosure is complete and to facilitate a follow up interview with the client to review the Crown’s evidence and to decide on a course of action. If we decide to proceed to trial, it will normally occur six months to one year down the road because of the backlog in our Courts.
Criminal cases are also delayed to gather facts and documentation from the client to facilitate resolution discussions with the Crown Prosecutor that can be considered as an alternative to a trial, where the outcome is uncertain depending on many variables including which Judge is presiding.
In our Criminal Courts, we are constantly engaged in a tug-o-war between specific deterrence and efforts towards long term rehabilitation of the offender, as well as restitution to help compensate victims of crime and to discourage future unlawful behaviour. And where the client has a viable defence the goal is to secure an acquittal or have the charge withdrawn early on in the process.
Do I need to wear a suit to Court?
Getting dressed up for a court appearance that actually matters like a trial or a sentencing date is a good idea. Showing respect for the Court can never hurt your prospects. I think most Judges are fairly conservative in outlook and they, like most people, appreciate good manners. Most Judges will take some time to notice the way you present yourself, how you speak, and your body language.
If you do not have the kind of clothes that would be appropriate at a formal occasion, then wear your jeans with a decent looking shirt and tuck everything in where it is suppose to be.
If you are required to address the Judge or give testimony at trial, listen carefully to any questions, and speak up with the best diction possible. It is always a good idea not to interrupt the Judge or Prosecutor who may be asking you an important question. If English is not your first language, a translator can be ordered.
If I have a witness helpful to my case, can a letter be submitted to the Court?
The short answer is no. A witness has to be under subpoena for the day of trial when that person will be called to testify. The evidence of any witness, including an accused person giving testimony, must be given under oath or by solemn affirmation to tell the truth. A witness for the defence must be in Court on the day of trial so that the Crown Prosecutor has ample opportunity to question the witness and challenge their version by way of cross-examination. Family members and employers often provide reference letters and confirmation of employment that can be considered by a Judge at a sentencing hearing without the person writing the letter being in attendance.
Will I have to testify at my trial?
That depends. If what you are going to testify to is truthful and helps to advance a defence that is recognized by our Courts as a lawful excuse or justification under our Criminal Law like self defence, then I will call the client and any supporting witnesses to testify. Unfortunately some clients take the stand and sink their own ship. This decision will be made well in advance of any trial date. Many trials proceed without calling the client to testify.
In those situations, the defence strategy is to attack the overall strength of the Crown’s case and in some cases challenge the admissibility of evidence where there has been a breach of an accused person’s rights as protected by our Canadian Charter of Rights and Freedoms. The onus of proof is on the Prosecution to prove an accused person guilty “beyond a reasonable doubt” which means a high degree of certainty before conviction can be entered by a Judge.
As a free and democratic society premised in part on Constitutionally guaranteed individual rights and freedoms, we would rather acquit some guilty people on the basis of reasonable doubt where the case appears weak in some crucial respect, lest we convict improperly one innocent man or woman. Cases are also dismissed because key evidence has been obtained in violation of a Charter protected right, for example in the areas of improperly obtained confessions and freedom against unreasonable search and seizure.
Wrongful convictions continue to be a problem in Canada and in all countries. Donald Marshall is a Canadian example of a wrongful conviction for murder. He spent eleven years in jail before he was finally acquitted by the Nova Scotia Court of Appeal in 1983. There was significant compensation paid, but no amount of money could restore the lost years and the harm caused by the long term incarceration of an innocent person.
What happens if I decide to plead guilty, or if I am convicted at trial after pleading not guilty?
The sentencing process ranges from straight forward to complex. The sentencing role of the presiding Judge depends upon an “individualized” process. Like our fingerprints, no two criminal cases are exactly alike in every aspect. Each case varies with the people involved and their personal circumstances.
Some convicted individuals are dealt with more harshly because of the magnitude of the crime that may include violence, serious injuries, and the use of dangerous weapons. A related prior criminal record will normally weigh against a convicted individual.
Sentencing options include fines, conditional discharge, absolute discharge, probation, conditional sentence order, and jail. In Canada, our Parliament abolished the death penalty in 1976.
The last execution in Canada took place at the Don jail in Toronto on December 11, 1962. Two men convicted of murder were put to death. One was convicted in the murder of a Toronto police constable and the other for the murder of an FBI informant working in Canada.
The long history of capital punishment in Canada includes 710 executions with 697 men executed and 13 women put to death by hanging.