Frequently Asked Criminal Law Questions

1

What's the difference between Robbery and Theft, or Robbery and Assault?
Robbery is essentially a combination of Theft and Assault (i.e. Theft + Assault = Robbery). Specifically, pursuant to Section 343 of the Criminal Code of Canada, Robbery occurs when someone steals from another, and uses violence (or threats of violence) to facilitate such theft.

2

What's the difference between Impaired Driving and Over 80? Can I be charged with BOTH Impaired Driving AND Over 80, and if so, can I be convicted of both?
Impaired driving occurs when your ability to drive is impaired by drugs or alcohol. Over 80 occurs when the concentration of alcohol in your blood exceeds eighty milligram per one hundred millilitres of blood (i.e. BAC > 0.08%). You can be charged with both Impaired Driving AND Over 80, for example if you had several alcoholic drinks, such that your BAC exceeded 0.08%, AND as a result of your alcohol consumption, your ability to drive was impaired. Alternatively, if you had several drinks such that your BAC exceeds 0.08%, BUT such consumption doesn't impair your ability to drive (e.g. if you're a "heavy-weight" and that amount of alcohol consumption has minimal effects on you), then you may only be charged with Over 80. Similarly, if you don't drink enough to bring your BAC above 0.08%, but your ability to drive is nevertheless impaired (e.g. if you're a "light-weight" so the effects of alcohol are stronger on you), then you may only be charged with Impaired Driving. Note, however, that even if you are initially charged with both Impaired Driving and Over 80, on account of the Kienapple principle, you cannot be convicted of both offences. As such, upon a finding of guilt on either Impaired Driving or Over 80, the other charge would be stayed.

3

If I pass out drunk in my car, but I am not driving, can I still be arrested and charged with 'drunk driving'?
Pursuant to section 253 of the Criminal Code of Canada, it is a criminal offence have care or control of a motor vehicle, whether or not it is in motion, when your ability to operate the vehicle is impaired by drugs or alcohol, or when your blood-alcohol concentration (BAC) exceeds 0.08%. As such, even if you are found sleeping in your car and the keys are only in the ignition to keep the heat on, you could still be charged with Over 80 or Impaired (Care and Control).

4

In the movies, after someone gets arrested, all they do is "pay their bail" and then they get out of jail. Is that actually how it works?
The bail process isn't that simple in Canada, or at least not in Ontario. Instead of only looking at how much the accused can pay, the Courts also look at the safeguards that can be put in place to ensure the accused attends his subsequent court appearances and doesn't re-offend. For this reason, in addition to considering how much money can be pledged, the Court also assesses the Plan of Supervision. The Plan of Supervision is the measures put in place (often by a surety) to ensure the accused is compliant with his or her terms of release. For example, a Plan of Supervision may include the surety driving the accused to and from work every day, and periodically telephoning him or her to ensure s/he's still at work as may be required in the terms of bail. A strong Plan of Supervision increases the accused's chances of release at the bail hearing.

5

I've been charged with a criminal offence, do I NEED a lawyer?
From a strictly legal standpoint, you don't "need" a lawyer. However, if you have to ask, then the answer is probably "Yes". Even if the offence you're charged with is relatively minor, it's still useful to have a lawyer to assist you and relieve the burden of having to go to court and deal with the criminal process. A conviction even on a minor offence could have disastrous effects on travel, employment, education, and child custody/access. For this reason, you want to put your best foot forward in handling the charges, and the best way to do that is to hire a trained professional.

6

What happens if I'm not released on bail after my bail hearing?
A bail hearing is the court proceeding that determines whether you are to be released from jail while awaiting the resolution of your charges. Bail hearings are an extremely important part of the criminal process, because if you are unsuccessful, you may be waiting in jail for several months until your case is resolved. Also, being detained seriously inhibits your ability to regularly discuss your case with your lawyer and develop a viable defence. If you are detained (i.e. not released) at your bail hearing, you may still bring a bail review application. A bail review is a hearing in the Superior Court of Justice wherein you argue why you should be released from custody pending the adjudication of your case. Arguments are made on the grounds that the Justice of the Peace who adjudicated your bail hearing was mistaken in law when s/he ordered you detained, and/or there has been a material change in circumstances since the time of that bail hearing. However, you must generally wait a few weeks before a bail review can take place, since you first need to order the transcripts from the original bail hearing, and draft the bail review application. For this reason, it is best to put forward your best efforts at the initial bail hearing so you are not left stranded in jail, waiting to bring a bail review application on the restricted basis that there was an error in law or material change in circumstances.

7

What's the difference between statutory release and parole?
PAROLE may only occur once an accused person has been convicted of an offence and sentenced to jail. In such case, the person may be eligible for parole after having served one third of their sentence (subject to certain exceptions e.g. for murder, war crimes, "dangerous offenders"). Being released on parole would allow the person to leave prison prior to the expiration of their sentence, though generally with certain conditions attached to their release, such as an order directing they check in with their parole officer as required. STATUTORY RELEASE, like parole, can only occur after an accused person has been convicted of an offence and sentenced to jail. However, unlike parole, statutory release occurs after the person has served two thirds of their sentence (again, subject to certain exceptions e.g. for murder, war crimes, etc.). Also unlike parole, statutory release is more of a certainty (especially in federal penitentiaries). Even if a person is denied parole, they would still likely be released from prison after having served two thirds of their sentence, pursuant to the statutory release regime.

8

What's the difference between bail and probation?
BAIL is pre-trial release from custody. In other words, after you have been charged with an offence, you may be released from custody on bail while awaiting adjudication of your matter. This would mean you don't have to remain in jail while awaiting your trial or guilty plea date. Bail will include certain conditions, for example, almost all domestic assault recognizances of bail will include a term that prohibits the accused from having any contact with the complainant. PROBATION, unlike bail, may only result after your matter has been adjudicated and a finding of guilt has been registered. Like bail, there will also be conditions attached to an offender's probation. Some of the probation conditions may even be the same as some of the bail conditions. Put simply, bail can only exist after an individual has been charged with an offence but before the matter has been resolved. After the matter is resolved, the bail and corresponding conditions will cease to exist, and replacing it will be terms of probation (assuming the accused was found guilty of the charge(s) and given a sentence that includes probation, such as a suspended sentence or conditional discharge).

9

Can I enter the United States with a (Canadian) DUI / drunk driving conviction?
As drunk driving (DUI) is not a "crime of moral turpitude", it is unlikely that a single DUI conviction will render you inadmissible. However, multiple DUI convictions will likely prevent you from being able to enter the United States. Further, customs and border patrol officers have discretion as to who they allow into the country, meaning they could still deny you access if they feel you may pose a danger to the public.

10

Can I enter the United States with a criminal record?
The answer largely depends on the type of offence for which you were convicted. Although US customs and border patrol officers generally have discretion as to who they allow entry, certain types of offences may mandate inadmissibility. Specifically, if you were convicted of a "crime of moral turpitude", it is almost guaranteed that you will be denied entry into the United States. Crimes of moral turpitude include such offences as robbery, rape, aggravated assault, theft, murder, drug trafficking, domestic assault and fraud. It is also important to note that the United States generally doesn't recognize Canadian pardons / record suspensions. This means that, even if you receive a pardon / record suspension for a prior conviction, the US customs and border patrol officers may give that little to no consideration, and deny you entry into their country.

Top 10 Criminal Law Terms You Should Know

(1) Indictable Offence- An indictable offence (or "felony offence" as it is called in America) is a classification of serious offences with harsh penalties. The accused is afforded a "preliminary hearing" to determine if there is sufficient evidence to warrant the accused being sent to trial. If a trial is necessary, the accused can choose to have a trial by: (a) Judge and jury in the Superior Court, or (b) Judge alone in the Superior Court, or (c) Judge alone in the Ontario Court of Justice. Many serious offences are "straight indictable", such as Robbery, Break & Enter into a dwelling-house, Theft Over $5,000, Fraud Over $5,000, most drug trafficking offences, etc.

(2) Summary Offence- A summary offence (or "misdemeanour offence" as it is called in America) is a classification of less serious offences with less harsh penalties. The accused is not afforded a "preliminary hearing", and the matter proceeds to trial in the Ontario Court of Justice, to be heard by a Judge alone. A common example of a "straight summary" offence is Possession of Marijuana under 30g.

(3) Hybrid Offence- A hybrid offence is one which can be tried either summarily (see (2)) or by indictment (see (1)), depending on what the Crown elects. The Crown will generally proceed summarily if the nature of the offence and the surrounding circumstances are not too serious. Most low-to-moderately serious offences are Hybrid, such as Theft Under $5,000, Assault (including Assault with a weapon and Assault causing bodily harm), Fraud Under $5,000, Mischief Under $5,000, most drug possession charges, Failure to Comply (with recognizance/bail, or probation), drunk driving charges, etc.

(4) Peace Bond- A peace bond is a court order requiring the accused to be of good behaviour and abide by certain conditions for a specified length of time (usually 12 months). A peace bond is considered a very good outcome for the accused, as it does not require them to plead guilty, and it often results in the charges being withdrawn upon signing the peace bond. As such, entry into a peace bond does not amount to a criminal conviction; however, breaching a peace bond is a separate criminal offence and may result in harsher penalties.

(5) Discharge (absolute or conditional)- There are two types of discharges- absolute and conditional. Both involve a finding of guilt by the court, but neither constitutes a criminal record. A conditional discharge has conditions attached to it, which vary based on the nature of the offence. These conditions can include anything from "no contact with the complainant" to "abstain from being in possession of any alcohol". Conversely, an absolute discharge has no conditions attached to it. A discharge (conditional or absolute) can only be imposed if it is deemed to be in the public's interest and if there is no mandatory minimum sentence for the relevant offence.

(6) Crown Pre-Trial (CPT) & Judicial Pre-Trial (JPT)- A Crown Pre-Trial is where the defence counsel and Crown Attorney discuss the case to determine possible resolutions, as well as particulars if the matter will be proceeding to trial (e.g. number of witnesses anticipated, time estimate for the trial, etc.) A Judicial Pre-Trial is similar to a Crown Pre-Trial, except with judicial oversight (i.e. judge can provide input regarding time estimates, possible resolutions, etc.). JPTs are often mandatory when the trial is estimated to last more than one full day.

(7) Bail Hearing- If the accused is not released upon arrest, or shortly thereafter, they will likely be held for a bail hearing. A bail hearing is a court proceeding which determines whether or not the accused should be released from custody pending the resolution of his or her charges. The Crown generally bears the burden of showing why the accused should remain in custody, but for certain offences (known as "reverse onus" offences), the accused must prove that he or she should be released. Bail hearings are arguably the most important step in the criminal process, because if you are not successful, you may be waiting in jail for months until your matter is adjudicated.

(8) Surety- A surety is a person (e.g. family or friend) who takes responsibility of the accused, supervising them and ensuring their good behaviour. Namely, it is the surety's duty to ensure that the accused attends court, abstains from re-offending, and abides by the specified bail conditions. Having an appropriate surety in place is often necessary for an accused person to be released from custody.

(9) Diversion- Diversion is a method by which the accused is "diverted" out of the court system. Instead of continuing through the criminal process, the accused accepts responsibility for their actions, often by making a donation, performing community service or writing an apology letter. Once the required action is complete, the charges against the accused are generally withdrawn.

(10) Suspended Sentence- A suspended sentence is where the accused receives a criminal record but does not go to jail. However, in conjunction with a suspended sentence, terms of probation are often imposed.

Your Rights

The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Canadian Constitution, which guarantees everyone in Canada specific civil and political rights. As the Charter is intended to protect Canadians against certain invasive government actions, issues surrounding violations of civil rights are prevalent in criminal law cases.

You should be fully aware of your constitutionally-protected civil rights, especially when you are involved in the criminal law process. If you are charged with an offence, there may be constitutional defences available based upon your Charter rights. However, in order to raise these defences, lengthy applications must be brought, thoroughly supported by case law and legislation. As such, it is essential that you retain a lawyer to represent you and raise these issues where appropriate.

Toronto criminal defence lawyer Daniel Freudman has successfully prepared a variety of different Charter applications resulting in exclusion of evidence, return of police-seized property, and even withdrawal of charges against clients.

Some of the most fundamental rights concerning criminal procedure include the following:

Charter Section 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 7 encompasses what is known as "the right to remain silent". This means that you are under no legal obligation to answer any questions that the police may ask you (subject to a few narrow exceptions, such as questions necessary to ascertain your identity e.g. name / address / date of birth). Because your silence cannot be used as an inference of guilt, police will often ask you questions and try to elicit incriminating answers. Accordingly, it is in your best interests to exercise your right to silence and refrain from answering any questions before speaking to a lawyer.

Section 7 also encompasses what is known as "the right to make full defence and answer". This means that you have the right to know exactly what you are up against with regard to your charges. Namely, you have the right to full disclosure, which entitles you to be provided with any and all the evidence that the Crown possesses and intends to use against you at trial. It also entails the right to cross-examine (i.e. question) those accusing you of committing the offence, in order to establish the truth.

Charter Section 8: Everyone has the right to be secure against unreasonable search or seizure.

Section 8 is prevalent in drug charges, whether it arises when police find a marihuana grow-op in a basement or a small quantity of drugs on a person. The provision protects you from having the police search anything over which you hold a ‘reasonable expectation of privacy’. This can include, among other places, your motor vehicle, your home, and anything on your person (e.g. your clothes and wallet).

If you believe that your constitutional rights were violated by police unlawfully searching you or seizing your belongings, contact Toronto criminal defence lawyer Daniel Freudman for fierce legal representation.

Charter Section 9: Everyone has the right not to be arbitrarily detained or imprisoned.

Section 9 is very prevalent in offences where a person is driving a motor vehicle and is pulled over by the police, and then revealed to have committed an offence (such as drunk driving, or having some illegal item in the vehicle). Violations of this provision are also common in cases of racial profiling, where police stop a person based not on reasonable grounds but rather based solely on that person’s ethnicity.

Charter Section 10(b): Everyone has the right on arrest or detention... to retain and instruct counsel without delay and to be informed of that right.

Section 10(b) allows you to contact your lawyer at the first reasonable opportunity you get. If you do not have a lawyer, then the police are obliged to provide you with a number for Legal Aid Ontario, which has a 24-hour hotline of on-staff lawyers. After you speak with a lawyer, the police will likely continue to ask you questions, as it is assumed that your lawyer informed you of your right to remain silent. Accordingly, it is generally wise for you continue to exercise this right and decline from answering any questions.

Toronto criminal defence lawyer Daniel Freudman can be reached 24/7 by those in police custody wishing to exercise their right to counsel.

Charter Section 11(b): Any person charged with an offence has the right... to be tried within a reasonable time.

Section 11(b) is intended to protect you and your case from being tied up in the legal system for an unduly prolonged length of time. What constitutes a "reasonable time", and correspondingly, what constitutes an "unreasonable delay" will depend on four factors: (i) the length of the delay, (ii) the reasons for the delay, (iii) any waiver of delay by the accused, and (iv) any prejudice suffered by the accused as a result of the delay.

If it can be established (based on these four factors) that the delay was, in fact, unreasonable and thus a violation of your 11(b) rights has occurred, then the charges against you may be stayed (i.e. discontinued).

Charter Section 11(d): Any person charged with an offence has the right... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

Section 11(d) guarantees that the Crown bears the burden of proving your guilt beyond a reasonable doubt. This means that it is not your responsibility to establish your innocence, although it is generally beneficial to put forward arguments to contest the Crown’s case.

Charter Section 11(e): Any person charged with an offence has the right... not to be denied reasonable bail without just cause.

Section 11(e) protects you against arbitrary denial of bail, or the imposition of bail conditions so extreme as to make bail unattainable. Denial of bail is generally only reasonable if detention is necessary to avoid flight risk or prevent the commission of further offences if released.

Daniel Freudman can be reached 24/7 by those in urgent need of a GTA or Toronto bail hearings lawyer.