I hear this question a lot from people who have been charged with a criminal offense and called to come to court.  This is, at first glance, a perfectly reasonable question.  Why not just explain yourself to the judge or prosecutor?  Won’t this case come to a swift end once they have your reasonable explanation?

Unfortunately, for those who are charged with a crime they did not commit – and I have encountered many – the legal system is not geared towards quick and easy solutions.  If you have been accused but are not guilty the goal will almost always be a stay of proceedings (“dropping” the charges), or a finding of not guilty following a trial.

The Crown prosecutor has the authority to decide to stay charges once they have been brought before the court.  They will only do so if they are satisfied that proceeding is no longer in the public interest or that there is no reasonable prospect of conviction.  In most situations the Crown prosecutor will assess those criteria based on what they have been given by the police and will be reluctant to reconsider based on the word of the accused person.  Convincing a prosecutor that your case is no longer in the public interest or that a trial is unlikely to result in a guilty verdict can take a few things that few people, other than criminal lawyers possess, namely:

1.     An understanding of how Crown prosecutors assess the “public interest” and how it can change from time to time.

2.     Experience in determining when cases are likely to result in a conviction.

3.     A familiarity with the most common mistakes made by prosecutors and law enforcement.

4.     Relationships with Crown prosecutors (this is probably the most overlooked).

These are where an experienced lawyer can make the difference between having to take a case to trial or not.

There are of course many cases where the prosecution will not simply stay the charges.  For those wrongfully accused the only remaining option will be a trial and it is at this point that the assistance of a lawyer is most critical.  Trials, sadly, are not “user-friendly.”  Understanding the necessary strategy for success takes specific legal training (intelligence, good public speaking or other education will not be enough).  Knowing how the law and evidence will be received in the real world by judges and juries can only be accurately determined by years of direct experience.

The world might very well be a better place if the wrongfully accused did not have to hire a lawyer to defend themselves (apologies to my lawyer friends for admitting this), but we do not live in that world.  If you have been charged with a crime you did not commit you need an experienced criminal lawyer on your side.

This is another question I get asked a lot.  If I am just going to get it over with and I am not going to need to prepare a trial, what will the lawyer do for me?

The most obvious answer – after even a little experience with the system – is that a lawyer can have a significant impact on the sentence that follows a guilty plea.  Relationships with prosecutors and knowing how best to explain things to prosecutors can significantly influence the Crown sentencing position in the case of “plea deals.”  Knowing the typical range of sentences for similar offences and how they relate to a specific case can be incredibly useful in crafting an argument for the sentencing judge – not to mention the advantage of having experience in front of the specific judge.

Less obvious is the assistance the lawyer can provide in the specifics of a guilty plea.  Is it necessary to plead to all of the charges before the court?  Are some charges likely to have a greater impact on the accused?  Would a “lesser” charge be sufficient (e.g. assault in place of assault causing bodily harm)?  All of these are questions best answered by an experienced criminal lawyer.

If you are asking this question, you are definitely not alone.  In BC Legal Aid does not cover a lot of people who are working hard, but do not have money on hand to pay legal fees.  What can you do?

My best solution is to offer payment plans to working clients who are unable to pay the full retainer up front. In some cases the delays inherent to the criminal courts can be made to work for the client.

Another solution is to offer flat rates in place of hourly rates for relatively simple cases.  When a case rises or falls on a single witness or can be decided on a simple and common legal issue, I have less work to do in preparation for the case.  This savings of my time can translate to a cost savings for the client.  

You have two key rights that exist to protect you in this situation.  The right to silence and the right to a lawyer.  

The right to silence means that you do not have to say anything to the police.  You do not have to answer any questions.  You do not have to explain yourself.  This means that refusing to answer police questions cannot be held against you.  

It is also important to remember that you do not exactly what the police know or believe to be the truth.  They may be wrong or they may have been mislead.  Worse still, the police do not have to tell you what they know and they are allowed to lie to you in many situations.   This means that it is impossible to be certain about what the police what to know before you speak to them.  Any information that you provide can be used against you and it can be very easy to incriminate yourself.

The right to access a lawyer when arrested or detained by the police exists to help you protect your right to silence.  Skilled police interrogators are experts in convincing people to give up their right to silence and incriminate themselves.  If you are in this situation you need an expert on your side to prepare you for what will come and explain how to deal with it.

Your right to retain and instruct a lawyer is triggered the moment the police arrest or detain you.  Contact a lawyer at the earliest opportunity.   

Many criminal and drug cases focus on something found by police during a search of a private place such as a house, a vehicle, or even a computer or phone.  These searches may or may not be authorized by a warrant, depending on the specific circumstances.  

Section 8 of the Canadian Charter of Rights and Freedoms guarantees “the right to be secure against unreasonable search and seizure.”  Whether or not a search is reasonable depends on case specific details, but if a search is found to be unreasonable the Court may exclude from evidence anything found during that search.  In my experience most people have at least a basic understanding that the Court may exclude evidence obtained by police by an unlawful search.  What appears to be less well understood is that the court can find a search to be in violation of a person’s rights under Section 8 of the Charter, but still allow the evidence to be admitted during that person’s trial.

A judge’s power to exclude evidence from a trial if it was obtained in breach of an accused person’s right is authorized by Section 24(2) of the Charter, but only if allowing the evidence would “bring the administration of justice into disrepute.”  Whether or not a violation of a person’s rights would “bring the administration of justice into disrepute” is often a complicated question and will depend on the specific situation.  In many cases this means that even though a person’s rights under Section 8 of the Charter have been violated, the evidence obtained during the search can still be used against them at trial.

Whether and how an unlawful search could bring the administration of justice into disrepute is worth careful consideration – and some professional legal advice – for anyone who has had their property subject to search and seizure.  

I have not had a trial yet, but I am on conditions of release.  Can I get them changed?

Even though presumed innocent, many people charged with criminal offences find themselves bound by restrictive conditions.  No-contact orders, curfews, and other conditions can be disruptive and do not always reflect the reality of the situation.  It is possible, depending on the circumstances and the type of order (a police undertaking or a release order) to have conditions changed or removed.  However, the process can often seem daunting and inflexible.  An experienced lawyer who knows the system and the individual people involved (prosecutors and judges) can make a significant difference in getting bail conditions changed.

I am bound by a no contact order, but the person I am not supposed to contact is trying to contact me.  What should I do?

The first thing to remember is that you are still bound by a no-contact order.  If you have direct or indirect contact with the person named on the order you can be charged with a crime and may have your release on bail revoked.  It is not a defence that the person wanted to have contact with you.  It is critical that you follow the conditions of any Undertaking or Release Order.  

In many such cases the best course of action is to make an application to have the no-contact order modified or removed.  However these applications can often be surprisingly complicated to have heard by the Court.  There is often a process of negotiation with prosecutors that can be critical in these situations.  The assistance of someone who knows the system is critical.  

Over the last several years more police and prosecution resources have been directed at allegation of intimate partner violence.  Police and prosecutors are often bound by strict policy in their decision making.

People facing domestic violence allegations are often placed on conditions preventing them from returning to their homes or from contacting intimate partners.  It can be extremely difficult to have these conditions changed or reviewed, even while a person is still presumed innocent.  

If you find yourself in this situation – whether guilty or not – you need someone on your side to help you through the process.  Retain a lawyer with experience handling domestic assault allegations.  

Allegations of sexual offences require special caution.  The stakes can be extremely high, with jail sentences expected on conviction.  Canadian criminal law imposes special procedures for sexual offences that are not present in other areas.  Legal concepts such as consent require particular attention.

If you find yourself in this situation you need experienced counsel. You need someone whose task is not to judge your, but to protect your rights and best interests.