What is self-defence and when can it be used?

Simply put, self-defence is a defence to the criminal offence of assault. If you use force to stop an attacker, self-defence may apply. The burden of proof is on the crown to prove that self-defence is unavailable in the circumstances, rather than on the accused. Section 34 of the Criminal Code of Canada sets out the requirements for the use of self-defence, which is laid out in 3 elements. First, the accused must reasonably believe that force or the threat of force is being used on themselves or another. Second, the purpose of the force must be to protect themselves or others. Finally, the act must be reasonable in the circumstances. Although the availability of the accused to retreat does not necessarily mean self-defence is not an option, it will be taken into consideration by the court when deciding whether the force was justified.

There are both subjective and objective elements of this defence. The court will look objectively at the accused state of mind when the act was committed, taking into consideration that “hindsight is 20/20” and the accused may not have acted in the most appropriate way possible due to the fact that they didn’t have time to think about and assess the situation. The court will look at the specific circumstances in the case before them to determine the accused state of mind and whether they believed the action was reasonable. Therefore, the court will take into account how the accused saw the situation to determine if they truly thought there was a risk, and whether they believed the action they took was reasonable. The subjective analysis will involve considering whether, in the circumstances, a reasonable person would have reacted the same way. Self-defence can also include the fact that the accused mistakenly thought there was more danger than there was. For example, the accused thought the attacker was armed.

Even in the case of defending your home from an intruder, the use of self-defence can only be used if the amount of force used to deter the intruders was reasonable. Defence from intruders entering your home is found in section 35 of the Criminal Code of Canada, which states that it is not an assault by criminal standards if the accused believed on reasonable grounds that someone was about to enter the property illegally and intends to damage or steal property. However, even if you have a legal right to attempt to deter the intrusion, this does not mean you can do so by any means necessary. Again, the defence is only available if the act committed was reasonable in the circumstances, which will be assessed by the courts.

If you have been charged with assault, it is important to seek legal advice immediately in order for a lawyer to review your case and determine any possible legal defences.

What happens if I miss my court date?

Following your arrest and after being charged with a criminal offence, you will be given a first court date. At the London courthouse, this will be in courtroom number 5. As soon as possible following you release, you should contact a lawyer to arrange a meeting to discuss your file. If you have not met with and retained a lawyer either privately or through legal aid, you will need to attend at your court appearance on the date specified. If you do not attend on that day, you may receive a new criminal charge of failing to attend. If you have not yet had time to meet with a lawyer prior to your first court date, you may attend at the courthouse yourself and speak with duty counsel who will assist you. You may then request an adjournment to allow you to select and retain a lawyer.

If you have missed a court date, you should get in touch with legal counsel immediately to try to rectify the situation. After you have hired a lawyer and signed a designation of counsel, your lawyer is permitted to appear on your behalf in court, and if the court date is missed for any reason you will not be penalized. This is why, as soon as you have been charged with any criminal offence, it is important to contact a lawyer as soon as you can.

If my partner doesn’t wish to proceed with charges of domestic assault, do I still need a lawyer?

The consequences of a criminal record can be huge, and unfortunately, even if you are innocent, if you have been charged with a criminal offence it is always recommended that you seek legal advice. Domestic violence allegations run a broad spectrum, and include any act against a partner or relative – including damage to their property or joint property. Due to the nature of domestic charges and the circumstances surrounding them, there are very strict guidelines on how to deal with them. Crown attorneys are only allowed to withdraw the charges on very specific occasions. The victim in a domestic assault case does NOT have the choice of whether their partner is charged with an offence. Once an incident is reported to police, it is mandatory that a charge be laid. This is to protect vulnerable people in a dangerous and violent domestic situation who may otherwise be pressured not to proceed with the charges.

Typically, immediately following a charge for a domestic related incident, the bail conditions (or conditions of release) of the accused will include an order not to associate with the victim. This means that they may have to find another place to live, and may even be prevented from seeing their children, regardless of whether the partner wants the charges withdrawn. This is another reason it is crucial to seek immediate legal advice, so that release conditions can be examined and potentially altered. Without varying the release conditions, a breach can result in another criminal charge.

If you have been charged with domestic assault or any other criminal charge, it is important to seek legal advice as soon as possible. If you are in need of assistance, please call to set up an appointment.

If I have been charged with a criminal offence, will I still be able to travel?

A criminal record can affect many aspects of your life, and travel is no exception. Every country has the discretion to refuse entry to an individual for any reason they choose, so it is difficult to say with certainty whether you may have issues if you have ongoing criminal matters. For countries for whom tourism is a large part of their economy, they may be more willing to allow entry despite criminal charges, but other countries may be more strict on who they allow in.

If you have been convicted of a criminal offence, you should talk to the embassy and consulate of the country you wish to visit in order to determine their entry requirements. To gain entry into Canada, for example, officials will equate the offence to one listed in the Criminal Code of Canada, and use that to determine whether they will allow entry. A person is likely to be denied entry to Canada if they have been convicted of one of the following offences: assault, impaired driving, resisting arrest, possession, trafficking, or fraud, although ANY criminal charge may result in a denial of entry. Similarly, when traveling from Canada to another country, the officials will examine the offence, looking at a number of factors including severity of the offence and how long ago it was committed.

For travel to the United States, you may apply for an entry waiver, which is a process that can take between 6-12 months and consist of completing forms, submitting fingerprints, and supplying a record of your offence committed in order to gain advanced permission to enter the country for a specified number of years. If you have contacted the embassy of a certain country you wish to visit and have determined that you will be allowed entry, it is still best not to book a flight that connects through the US to avoid potential problems. Unless you have an entry waiver or have already spoken to US customs and border protection to confirm you will be allowed entry, booking a direct flight to the country you wish to travel is the ideal route.

Even if your matter is ongoing and you have not yet been convicted but have been charged with an offence, you may still encounter problems with travel. Once you have been fingerprinted and photographed, even if the charges were later withdrawn, the US border protection has access to that information, so a destruction of your records is highly recommended.

When are the police allowed to pull me over in my vehicle?

The Highway Traffic Act provides police with the power to pull over any motor vehicle during the course of their duty in order to achieve public safety. This means that an officer is allowed at any time to pull over any vehicle in order to check for a valid license and/or insurance on the vehicle. When signalled to pull over, drivers are required to do so immediately and are not permitted to leave until advised by police. After being pulled over, the officer is allowed to request license, registration, and insurance documents for the vehicle and driver. The officer is also entitled to inquire about the ability of the driver to properly operate the vehicle, such as asking whether they have consumed alcohol prior to driving. Although you are not required to answer any further questions, it is always advisable to be pleasant and cooperative when dealing with the police.

Although the police are not allowed to search your vehicle when they stop you, they ARE allowed to look in your windows, and may use a flashlight if they cannot see (for example at night). The police are only allowed to physically search your vehicle if they have reasonable and probable grounds to suspect that there is evidence in relation to the commission of a crime in your vehicle and that it will be removed or destroyed if they get a warrant. Accordingly, if the officer looks in the window of your vehicle and sees in plain sight anything illegal or something that gives rise to these reasonable probable grounds, they MAY search the vehicle.

If I committed an offence as a youth, what does that mean for my record in the future?

In Canada, there is something called the Youth Criminal Justice Act (YCJA), which was created in order to protect young persons who are accused or convicted of crimes by keeping their identity confidential. Due to a reduced capacity compared to their adult counterparts, young offenders are treated differently and are dealt with in a separate youth court. When a young offender appears in court, a publication ban is attached to the file, meaning that the media is unable to publish any information that could identify the individual.

Typically, when an adult person is convicted of an offence, their record is permanent. For young offenders, however, criminal records are restricted and are only available during a certain access period. During the access period, a criminal record check will bring up the information of the offence. If, during this period, the young offender turns 18 and is convicted of another offence, the youth record will be converted into an adult record. If the young offender does not reoffend during this period, the record will be sealed and will not show up on a criminal record check. The access period duration will depend on the severity of the offence and the sentence imposed. It is important to note that, in the case of very serious charges, a youth record can be kept indefinitely. After the access period has expired, the TCJA provides strong protections against disclosure of youth criminal records. In fact, it is an offence for anyone (other than law enforcement) to disclose to anyone outside of law enforcement anything about the existence of a past youth criminal record unless the youth record has become part of an adult criminal record for the reasons already indicated. As such, a person with a dated youth record and no adult convictions is entitled to say they have no criminal record. 

Except in very rare circumstances, other countries do not typically have access to youth records. However, a criminal record of any kind may prevent travel to another country. Canada’s laws only apply within our borders, and it is up to the discretion of the country you are seeking to enter whether they allow entry.

A youth record may also impact a person’s employment prospects. Except for a government job, the police will not disclose a youth record to any employer. However, an employer may ask a potential employee to perform a criminal record check. You are allowed to refuse, but this may hinder your ability to secure employment.

I have just been charged with a criminal offence, what should I expect and what is the process?

On arrest, an accused person has the right to consult with legal counsel of choice prior to making any statements to police. It is crucial that an accused person take advantage of the right to receive timely and effective advice on arrest. Once arrested, an accused will either be released by police, or, detained in custody overnight. If detained, an accused will be brought before a Justice of the Peace within 24 hours. The accused may then either be released with the consent of the crown prosecutor, or, proceed to a bail hearing to determine whether the accused will be released.

5 Court is the gateway into the criminal justice system for those who are released from custody. Video Court is the equivalent court for those who are held in custody. Appearances in video court are by way of video link from a local corrections facility (usually the Elgin Middlesex Detention Centre – EMDC). This is where we will receive your disclosure so we can then arrange a meeting with the Crown attorney to review your file. At this point, we will consult with you to determine whether we will move forward to resolution or to trial.

Trials are expensive and uncertain. They also take time. From the date you are ready to set your case to trial there is often a 3-6 month wait for trial time. Sometimes a much longer wait is required. That is why – whether you are in custody, or out of custody – every effort should be made to resolve your case without having to go to trial. There are many forms of early resolution that do not result in a criminal conviction and/or criminal record. We can explain your options and, if an agreeable resolution cannot be reached, we will proceed to trial.

Can the police search my home without a warrant?

As a Canadian, you are entitled to a reasonable expectation of privacy. That expectation, however, is not consistent everywhere, and varies depending on where you are. For example, you have a very high expectation of privacy in a private home, less in a personal vehicle, even less in a rental car, etc.

The Supreme Court case R. v. Patterson, 2017 clarifies the law regarding searches of someone’s home without a warrant. In order to search a house without a warrant, the police must prove that there were urgent circumstances that made it impracticable to obtain a warrant. In the Patterson case, police responded to a 911 call from a woman who needed help. The police knocked on the door even though the woman had already been taken to hospital, and Patterson answered and admitted to having marijuana in the home. They told him they needed to confiscate it, but would not arrest him. As he went to shut the door to go get the marijuana, the police pushed open the door and followed him in, finding guns and drugs.

 The Supreme Court found that, since the police were not intending to arrest him, there was no immediate need to enter the apartment without a warrant (such as the need to preserve evidence). For this reason, the search was a violation of Patterson’s section 8 charter right to be free of unreasonable search and seizure, and the evidence was excluded.

This decision reaffirms how high the threshold is for allowing police to enter someone’s residence without a warrant, reinforcing the privacy rights of Canadians. So, in short, yes the police MAY enter your home without a warrant, but only in specific extenuating circumstances. In most cases, the police are not allowed to search it without a warrant unless you give your consent.

What is ignition interlock and how does it work?

An Ignition Interlock device is an in-car alcohol breath screening device that prevents a car from starting if it detects a certain blood alcohol level on the driver.  The device is connected to the engine’s ignition system, and requires a breath sample in order to start the vehicle. Once started, the device will require additional samples at random times while the engine is running. If these samples are not provided, the device records the event and will activate an in-car alarm such as lights flashing and horn honking. It is an offence to tamper with the ignition interlock system in any way.

You may become subject to the Ignition Interlock Program one of two ways:

• You’ve been convicted of an impaired or drink and driving related offence under the Criminal Code of Canada

• You’ve been suspended three or more times in a five year period for: driving with a blood alcohol level above 0 while 21 or under; driving with a blood alcohol level above 0 while being a novice driver; driving with a blood alcohol level in the “warn” range between 0.05-0.08; or failing to comply with a demand for alcohol or drug testing.

Both of these situations carry with them their own consequences such as a suspended licence, fines, and reinstatement fees. Additionally, each carries an Ignition Interlock period of at least a year.  Once your licence is reinstated, if you want to drive you will have to install an Ignition Interlock system in your car until the condition is lifted, so you will not be allowed to drive any vehicle that is not equipped with a device. The amount of time you will be required to have this condition on your license will depend on a variety of factors, including whether you have committed a similar offence in the past.

If you are eligible for the Ignition Interlock Program you will be responsible for the for the installation and maintenance costs of the device.

If it is your first time being convicted of an alcohol impaired driving offence under the Criminal Code, you may be eligible for a reduced licence suspension if you fulfill several requirements, including the mandatory installation of an Ignition Interlock system.  An important limitation of this program is that you must enter a plea of guilty to the offence and you must complete the plea and sentencing process within 90 days of the offence.

Losing your licence due to impaired driving can be a major stressor in your life – we’ve all become reliant on our vehicles.  If you’re facing an impaired charge, call us as soon as possible so we can assess your options and make the most of the Ignition Interlock Program to get you back on the road as soon as possible.

I was just sentenced to custody, but I already spent time in custody before trial – will this be deducted from my sentence? Is there such a thing as enhanced credit for my pre-sentence custody?

If you were denied bail and were held in custody pre-trial, you were likely housed in a Detention Centre. Detention Centres operate a little differently than federal or provincial institutions (where you go after sentencing) in that there is usually overcrowding and a lack of availability of programming. So if you’re going into custody now, at least this should change.

In 2014 the Supreme Court released a decision that set the calculation of pre-sentence custody credit at 1.5:1. This means that for every day spent in custody at a detention sentence prior to trial you will receive the equivalent of 1.5 days credit to be removed or deducted from your sentence. So, if you spent 30 days in pre-trial custody, you will be credited 45 days now. If you spent more time than that, you can calculate the number of days and multiply by 1.5 and be sure that you will be credited that amount. However, if you are facing multiple charges you cannot “bank” time for one set of charges to apply to another (unrelated) set of charges.

In 2016, the Ontario Court of Appeal also found that in appropriate circumstances, particularly harsh pre-sentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit ratio. A high number of lockdowns can be grounds for enhanced credit as they are a regressive form of punishment.

If you feel that you faced particular hardship at the Detention Centre before your trial, give us a call and we can advise you on how it might affect your sentence.