What is legal aid and how do I get it?

Legal Aid is a government-funded program that provides those charged with a criminal offence with a certificate to be used to retain legal counsel of their choice. Eligibility for Legal Aid is primarily determined based on income and whether there is a substantial probability of incarceration attached to your charge(s). The purpose of Legal Aid is to help accused persons with lower incomes retain legal counsel. Other factors such as whether the accused is a first-time offender and whether the accused has mental health issues are sometimes taken into consideration.

In order to apply for Legal Aid you will have to provide information about your charge(s) and financial documents. If you are denied Legal Aid you can appeal the decision. If your appeal is denied, you may be able to have a Judge order an appointment of counsel if you meet certain criteria. An appointment of counsel requires Legal Aid to issue you a certificate.

What is the difference between a summary and indictable offence?

Every offence in the Criminal Code is classified as a summary, indictable, or hybrid offence. A hybrid offence is one where it is left up to the Crown’s discretion to decide if they would like to proceed summarily or by indictment on the charge. These terms are indicators of how “serious” the offence is. Summary offences are generally less serious offences while indictable offences are more serious. This classification impacts the severity of the penalties you could face. It also determines whether you have the right to a trial in the Ontario Court of Justice or the right to a preliminary hearing in the Ontario Court of Justice followed by a trial in the Superior Court of Justice. Those entitled to a trial in the Superior Court of Justice also have the right to elect to a trial by judge and jury or by judge alone.

The classification of the charge as summary or indictable is extremely important in cases where the accused has simultaneous immigration and citizenship concerns. If convicted, it can also impact the timing of your eligibility to apply for a pardon/record suspension.

Are police allowed to stop me for a R.I.D.E. program? What are my rights?

Police in Canada are legally authorized to stop drivers at random for the purpose of checking sobriety. When police stop you for a ride program, they are checking for reasonable grounds to suspect that you have consumed or are impaired by alcohol and/or drugs. Many R.I.D.E. stops begin with the officer asking if the driver has been drinking. Answering “yes” to that question or other indicia of consumption such as slurred speech, the scent of alcohol, and glassy eyes are sufficient grounds for the officer to reasonably suspect you have been drinking. Once police have these grounds, they are permitted to ask you for a roadside sample or to complete other roadside sobriety testing. During this time, your Charter right to counsel is effectively suspended.

If you fail the roadside testing, you will be placed under arrest and should be read your right to counsel at this time. You will then be transported to the police station to be subjected to more rigorous screening procedures such as a breathalyzer or the Drug Recognition Evaluation. You should be given an opportunity to speak to counsel before this test is completed. Impaired driving charges are some of the most complex and technical charges in the Criminal Code.

Do I have a right to “plead the fifth” on the stand?

Unlike what you may have seen on Law and Order or countless other American legal dramas, there is no such thing as “pleading the fifth” on the stand in Canada. That phrase references the fifth amendment of the American Constitution which states that no person shall be compelled to be a witness against himself. It is often invoked by witnesses and accused persons while testifying. In Canada, there is also a right to not be compelled to be a witness against yourself under section 11(c) of the Charter of Rights and Freedoms. This means that no accused person can be forced to testify at his or her own trial. However, once an accused decides to take the stand, they have forfeited their right not to testify and must answer the questions asked by their lawyer, the Crown, and the Judge. If an accused refuses to answer questions while on the stand, it could be detrimental to their credibility or even lead to them being charged with obstructing justice or being in contempt of the court.

I was released on bail but I want to change one of my conditions of release. What can I do?

The first step in having one of your bail conditions changed is to apply to the Crown Attorney for a bail variation. If the Crown consents to your request then your last step is to appear in front of a Justice of the Peace to sign your new conditions. If the Crown will not consent to your request, you can bring an application for bail review in the Superior Court of Justice. The chance of having your conditions of release amended is much higher if there has been a material change in your circumstances since these conditions were decided or if you have some other good reason for amendment.

I’ve been charged with domestic assault but my spouse doesn’t want to proceed with the charge. Will they drop my charge now?

Police and Crown Attorneys treat domestic allegations differently than other allegations due to the unfortunate history of domestic violence in Canada. To be considered a domestic matter, the complainant could be your spouse, girlfriend/boyfriend, or an ex. Even if the complainant is not supportive of the charge against you, only the Crown has the discretion to withdraw the charge. In most cases, the Crown will not withdraw the charge. However, the Crown will listen to input from the complainant and consider their wishes while conducting the case.

I’ve heard so much in the news lately about the legalization of marijuana. Is it legal for me to buy and sell marijuana now?

Even though marijuana dispensaries are popping up in cities across Canada, they are not authorized by law and are operating illegally. Only licensed producers are legally allowed to sell marijuana in Canada. In order to become a licensed producer, one needs to apply and be approved by the government. There are approximately thirty licensed producers across Canada. The only way to legally buy marijuana in Canada is to have a valid medical marijuana prescription from your doctor and to purchase from a licensed producer.

There is a warrant out for my arrest. What should I do?

If a warrant has been issued for you, it means the police have reasonable and probable grounds to believe that you have committed an offence. A warrant could issue for several reasons including if you ignored a subpoena to come to court, if you failed to show up for court as stipulated on a promise to appear, a summons, or a recognizance, if you breached a release condition, or if the police suspect you have committed an offence. A warrant must be approved by a Judge or a Justice of the Peace before it is considered a valid warrant. A warrant gives police the power to arrest the person named on the warrant. If you find out that a warrant has been issued for you, the best thing to do is to turn yourself in to police. Turning yourself in is in no way an admission of guilt or wrongdoing, but instead can be seen as a form of cooperating with police.

If you have reason to believe that a warrant exists for your arrest and are confused by the process or have any questions, contact our office today.

Does a pardon ensure that I will be able to cross the U.S. border?

A pardon, more accurately referred to as a record suspension, keeps the judicial record of your conviction(s) separate and apart from other criminal records. It removes all information about your conviction(s) from the Canadian Police Information Centre (CPIC) database and means that your conviction(s) will not show up on a regular criminal record check. Although a pardon clears your record in Canada, it is no guarantee that you will not have difficulties crossing the American border.

Even if you have a pardon, the best way to eliminate your chance of facing difficulties at the U.S. border is to obtain a U.S. Waiver. It is possible to apply for a waiver of your inadmissibility to the U.S., which grants you advance permission to travel to and from the U.S. for a set period of time. This waiver takes away the guesswork of whether or not you will be permitted to cross and minimizes any hassle you could face at the border. The process can take up to a full year after the application is submitted and you do not need a lawyer to complete one.

I was in a car accident and provided information for compulsory accident and insurance reports. Can this information be used against me if I am criminally charged following the accident?

When you are involved in a car accident, you are compelled by traffic legislation to provide an accident report to police and to provide information to your insurance company about the accident. Depending on the circumstances, criminal charges are sometimes laid following an accident. In the recent case of R v. Porter, 2015 ABCA 279, the Alberta Court of Appeal clarified that the statutorily compelled information contained in your accident and insurance reports cannot be used against you. This means that any information you provide in your reports cannot be used as evidence for the Crown as part of criminal proceedings against you as this would violate your Section 7 Charter right and the principle against self-incrimination. This ruling means that the Crown cannot use any information you provided in your reports to obtain a search warrant or a production order.

If you’ve been involved in a car accident resulting in criminal charges and believe your rights were violated, contact our office today.