What are my Constitutional Rights?
The Canadian Charter of Rights and Freedoms is a document that is entrenched in our Constitution which outlines the rights and freedoms of all Canadians. As a broadly worded document, it is open to many interpretations and, as such, the assistance of experienced legal counsel is invaluable. Reproduced below are the most relevant sections of the Charter that apply to criminal law.
CANADIAN CHARTER OF RIGHTS AND FREEDOMS
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association…
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
a) to move to and take up residence in any province; and
b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
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.
8. Everyone has the right to be secure against unreasonable search or seizure.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention
a) to be informed promptly of the reasons therefor;
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
11. Any person charged with an offence has the right
a) to be informed without unreasonable delay of the specific offence;
b) to be tried within a reasonable time;
c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
e) not to be denied reasonable bail without just cause;
f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence…
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Do I have to say anything to the police if they question me?
There are certain situations where answering questions asked by police officers is required by law. For example, when operating a car or bicycle, a driver is obligated under the Highway Traffic Act to identify him/herself to a police officer upon demand. Similarly, the Liquor Licence Act requires a person to provide identification if the police officer finds that person apparently in contravention of the Act.
However, the legal obligation to answer questions posed by the police cannot be extended to “investigative questioning.” When the police question a citizen regarding a crime, it is likely that they are conducting an investigation. Although the courts have recognized that there may be a civic or moral duty for citizens to assist the police in their investigations, there is absolutely no legal requirement to do so. This applies equally to both questions posed prior to arrest and the questioning of persons in police custody. This means that an individual can legitimately refuse to answer criminal investigative questions put to him by persons in authority without the fear of legal repercussion.
It must be remembered that the police are trained in investigative techniques and will often use an approach designed to either sympathize with or frighten an individual into answering their questions (“good cop, bad cop”). Regardless of which method is used, do not be fooled: the ultimate goal of most police questioning is to collect evidence to support a criminal proceeding against you. Thus, it is obvious that making any sort of statement to the police, without properly exercising one’s Constitutional right to consult with legal counsel, can have devastating effects. If questioned by the police while under arrest or being investigated for a criminal offence, do not risk your freedom by making any statement, no matter how helpful you might think it is. Assert your right to speak to a lawyer and call a lawyer at Edward H. Royle & Partners LLP for legal advice immediately. Your freedom could depend on it.
How much does it cost to hire a lawyer at Edward H. Royle & Partners LLP?
In brief, lawyer’s fees cannot be listed like a simple menu – each case is unique. At Edward H. Royle & Partners LLP, we prefer to evaluate each case individually and focus on the specific needs and goals of our clients. That’s why we suggest coming to meet with us, free of charge, to discuss fees.
There are a number of factors that must be considered in assessing the cost of preparing a proper defence: the client’s goals, the complexity of the case, the nature of the legal issues involved, and the experience level of the lawyer. At Edward H. Royle & Partners LLP, we have lawyers ranging from junior associates to one of the most senior defence counsel in Toronto so you have multiple options.
We prefer to use a block fee system, rather than an hourly rate. Block fees have the benefit of covering the entire cost of all services provided by members of our law firm: court appearances, meetings, research, pre–trials, legal work, and all the preparation of your case. Block fees also eliminate the uncertainty of hourly rates and allow for continuous consultation with our firm without fear of increased cost.
We can arrange one of various forms of payment plans to suit your needs. We accept cash, cheques, credit cards, Interac debit transfers, and Legal Aid certificates. To inquire about Legal Aid eligibility requirements and the application process, click here.
What is the difference between Impaired Driving and Driving "Over 80"?
The Criminal Code has two distinct, yet related, provisions which criminalize drug and alcohol related driving offences. In short, s. 253(1)(a) prohibits the operation of a motor vehicle while the driver’s ability to do so is impaired by drug or alcohol. Actual evidence of poor driving can be used to prove the offence but is not necessarily required. What is required is a purely subjective assessment made by the police officer about the driver’s fitness to drive as it relates to drugs or alcohol. In other words, the officer has to form an opinion about the driver’s ability to operate a vehicle and determine whether or not it is negatively affected by drugs or alcohol.
On the other hand, s. 253(1)(b) prohibits the operation of a motor vehicle while the operator’s blood alcohol level is over a certain concentration – 80mgs of alcohol in 100mls of blood. This is not an opinion at all, it is a scientific measurement. Typically, this charge is laid after the police administer a roadside screening device. If the instrument registers a reading above the 80mg legal limit, the driver is arrested and taken to a nearby police station for a more thorough analysis which, in theory, determines their actual blood alcohol level.
The consequences of a conviction on either charge can be of major significance: a criminal record, lengthy driver’s licence suspensions, and a substantial increase in already high insurance premiums. If you are charged with impaired driving and/or driving “over 80”, it is wise to consult the experienced counsel at Edward H. Royle & Partners LLP who have the added rare advantage of having a former qualified breath technician on staff.
What is a bail hearing?
A bail hearing is a court procedure following an individual’s arrest where a justice of the peace or judge determines whether or not a person who has been charged with a criminal offence should be held in jail or not, until that person’s guilt or innocence is determined. The initial bail hearing is a critical stage of criminal proceedings. Being denied bail restricts an accused person’s liberty and subjects him or her to an often lengthy period of pre–trial incarceration without being found guilty of any criminal wrongdoing. It is therefore vitally important, when facing the prospect of a bail hearing, to contact the experienced lawyers at Edward H. Royle & Partners LLP to ensure not only your rights, but also your invaluable freedom, are fully protected.
What is a surety? Who can be a surety?
When a person charged with a criminal offence is held for a bail hearing, it may be required that a person be released from jail only if they can be supervised. The person who supervises is called a “surety”. A surety is required to make sure that the accused person follows the conditions of their release as set out in a document called a “recognizance”. A surety is required to ensure the accused person attends court and must call the police to report any breach of the terms of the recognizance.
It is vital that potential sureties are able to monitor persons released on bail. To ensure this, the court requires a surety to pledge an amount of money to demonstrate to the court that they are taking their supervisory role seriously. This money need not always have to be given to the court in advance; however there are circumstances where a deposit may be required. If the person granted bail breaches a condition of their release, the money can be ordered to be forfeited to the Crown at an estreatment proceeding.
Sureties are allowed to apply to the court to be relieved of their obligations. This will usually result in the accused being arrested and held for a new bail hearing.
There are no set rules for who can be a surety other than they must be at least 18 years old. However, there are certain attributes that can make a surety a more attractive candidate. The surety should have:
- Canadian citizenship or permanent resident status
- No criminal record or a dated criminal record
- Time to supervise (retired, unemployed)
- Assets (money in the bank, investments, equity in a home – cars cannot be used as assets)
- A good relationship with the accused person
Is it possible to vary a condition of my bail?
Should I just plead guilty? What are the consequences?
It is never a good idea to “just plead guilty” or to “plead guilty to get out of jail faster”. A decision to plead guilty should be fully informed and should only be contemplated after all other avenues appear less attractive. This decision cannot be properly made until all disclosure (the Crown’s evidence) has been received and the entire scope of the case against you is known. It is important to speak with a lawyer about your individual case, its strengths and weaknesses, and to fully assess your unique situation before you make this decision.
Pleading guilty to a charge could have a variety of detrimental consequences, as outlined below. Each situation is unique. If you are considering entering a guilty plea, you should speak with a lawyer at Edward H. Royle & Partners LLP first about your case and the possible consequences.
What are the consequences of having a criminal record?
A criminal record can have a serious and permanent impact on your life. If an accused is found or pleads guilty to an offence, the substance of a past criminal record can drastically affect the severity of an imposed sentence. It is likely that stiffer sentences will be imposed for those with prior criminal convictions than for those without.
Practically speaking, when travelling to the United States, amongst other countries, an individual with a criminal record could be refused entry. Moreover, when applying for a job, employers often ask whether you have a criminal record and may ask for a criminal record check. Aside from an employer not desiring a “criminal” on their staff, some jobs are simply not open to anyone with a criminal record. A criminal record could have severe immigration consequences if you are not a Canadian citizen such as automatic inadmissibility and deportation. A criminal record could also have a negative affect on other legal proceedings such as family law applications or matters involving child custody. Should you have specific concerns about the consequences of a criminal record, you should speak with a lawyer at Edward H. Royle & Partners LLP directly.
What happens at my first appearance in court?
Very little happens during a first appearance in court. The main purpose of your first appearance in court is to get disclosure (the evidence the Crown will use against you). If the disclosure is in court, it will be given to you, and your matter will be remanded to a new date approximately 2–3 weeks later to allow for you/your lawyer to have a pre–trial (see below). If disclosure is not available on your first appearance, then your matter will be postponed approximately 2–3 weeks to allow the Crown time to acquire and/or prepare it.
What is a pre-trial?
There are 2 types of pre-trials: “Crown pre-trials” and “judicial pre-trials”. A Crown pre–trial is a discussion between your lawyer and the Crown attorney (the prosecutor) about your matter. The discussion usually takes place by phone between court appearances after your disclosure has been received. The purpose of the Crown pre–trial is to discuss whether or not the Crown’s disclosure obligation has been met, to discuss an estimate of the amount of time a trial or preliminary hearing will require, and to briefly discuss any possible resolution to the matter without having to proceed to an actual hearing in court. It is usually necessary for a Crown pre–trial to be conducted before a trial or preliminary hearing date can be set.
A judicial pre–trial is similar to a Crown pre–trial in the sense that it is also a discussion. However, the judicial pre–trial involves an informal discussion between the Crown attorney, your lawyer, and a judge. It is usually required when the matter involves charges of a more serious or complex nature or when there are multiple co–accused whose individual issues need to be addressed.
What is a preliminary hearing? How does it differ from a trial?
At a trial, a judge or jury hears evidence upon which they are required to decide whether a person is either guilty or not guilty. A preliminary hearing operates very much like a trial, except that it is a hearing before a judge alone who decides whether there is enough evidence to warrant proceeding to an actual trial. If there is not enough evidence, the charges are dismissed and the accused is free to go. If there is enough evidence, then the accused person is committed to stand trial. A preliminary hearing is only available for matters proceeding by way of indictment.