I put here answers to some of the questions that I typically get when a client first calls me. Of course, I can provide much more detail in a face to face consultation.
Put it this way. If I were charged with a criminal offence, I would retain a lawyer. And this is despite the fact that I know more about criminal law than the average person. It would not make a difference whether I was guilty or innocent.
From my perspective, if you are not sure you want a lawyer, I will not be able to assist you. I believe that the litigation process requires cooperation, trust and communication between the lawyer and the client, and this is not possible when the client is unsure whether needs me at all.
If you are innocent but charged with a criminal offence, an injustice has already been done to you and there is really nothing that can be done to make things exactly the way they were.
My expertise is with the criminal law and I will do the best job I can to ensure that you navigate this complicated world in a way that minimizes your suffering.
If you believe that because you are innocent, things will all work out in the end without any steps taken on your part, you may be right. But if you think life always works like that you certainly have more faith than I do. Personally, I would want all the help I can get.
It is not my job to judge you. In my experience, very very few of my clients are bad people. Typically, they have ended up where they are as a result of unfortunate circumstances or bad decision making.
You may think you are guilty, but it may turn out that some element of the offence was not made out. You may in fact be guilty, but the Crown may not have all the evidence necessary to prove it. Even if it appears that the Crown has all the necessary evidence, the evidence may not be available by the time that a matter gets to trial. Even if all the evidence makes it to trial, it may be possible to have this evidence ruled inadmissible. Even if the necessary evidence is admitted, it may be possible to have the charges stayed due to breaches of your constitutional rights. Even if the charges are not stayed and the trial is completed, the totality of the evidence may come out in a manner that creates reasonable doubt. Even if you are convicted, the sentence you receive may not be any less than what you would get on a guilty plea.
You should not immediately plead guilty. I won't lie to you -- a small number of my clients does end up pleading guilty. However, I only do this after I thoroughly review the evidence, analyze the pros and cons of going to trial and discuss the matter with my client. My client makes the ultimate decision, based on the best advice that I can provide. I fight hard for my clients, even when they plead guilty. Sentences always have a wide range and there is a lot that can be done to make sure that you are at the low end.
Generally speaking, I would not advise my client to plead guilty unless (1) my client is guilty AND (2) it appears that the Crown would be able to prove that he is guilty AND (3) I believe that Crown is offering a position on a guilty plea that is much, much less that what my client would get being convicted following a full trial.
A lot can happen between arrest and trial. Witnesses can become unavailable. Memories can fade. Police and prosecutors can make mistakes. My job is to make sure that my client takes advantage of all of these events when they happen.
Most importantly, in most cases, the prosecution does not have any incentive to properly consider weaknesses in evidence or whether the case is worth prosecuting at all until the trial date because the prosecutor handling pre-trial discussions is not the prosecutor who would do the trial. So, any attempt by me to resolve the case before the trial date means either trying to resolve the case when the case for the prosecution is at its best or assisting the prosecution in fixing the weaknesses in their case against my client. That's why I take things to trial.
There are many forms of sentence that can be imposed after you plead guilty or go to trial and are found guilty. Some these, such as fines, suspended sentences, probation and discharges, do not involve jail time. However, they are findings of guilt that will be entered into your criminal record and they will be held against you in the future.
There is a form of sentence called a discharge. Technically, under Section 730 of the Criminal Code, a person sho has been discharged is 'deemed not to have been convicted of the offence', subject to a list of exceptions. A person who wants you to plead guilty may tell you that a discharge is not really a criminal record. However, there are many things that you should keep in mind. If you have another run-in with the police, they will treat you as a person with a criminal record. If you do a criminal record check for the purposes of employment, your discharge will pop up. If you get charged with further criminal offences, the prosecution will not treat you like a person who has never been before the courts before. If you are found guilty of further criminal offences, the earlier discharge will affect what sentence you get the second time around. A court can convert a discharge into a full criminal record. A foreign country may not recognize this fiction of a discharge not being a criminal record. The United States is a foreign country. So, for all these reasons, trust me -- a discharge is a criminal record!
It is the police who lay the charge, not the complainant (i.e. the person who it is claimed was directly harmed by the criminal act). A criminal prosecution is described in the form: "Her Majesty the Queen v. Joe Blow". What this means is that the trial is essentially fact finding and dispute resolution mechanism where the state is claiming that Joe has committed a criminal act, that this act breaches the peace and that this breach is directly or indirectly harmful to the public at large. The complainant is only a witness in the proceeding. Although the position of the complainant may be considered by the prosecutor, a prosecution may proceed despite the objection of the complainant, especially in "domestic" cases.
The word "domestic" occurs four times in the Criminal Code: once in reference to domestic organizations in the context of terrorism offences and three times in reference to domestic animals, i.e. cats and dogs. Most of us understand the word to mean "having to do with the home". So, matters between husband and wife, between parents and children, or having to do with other people living under the same roof are understood to be domentic matters. This is not the understanding of the Crown, which prosecutes criminal charges. To the Crown, a "domestic" matter is one where the relationship between the complainant and the accused is that of husband and wife, boyfriend and girlfriend, etc.
The significance of this classification is that there are special courtrooms set aside to handle "domestic" cases and special Crowns who have been indoctrinated to prosecute the cases. This is for purely political reasons. As a practical matter, the classification by the Crown of a matter as "domestic" results in the desires of the complainant being ignored, the legal rights of the defendant being ignored and more steps being taken to coerce a guilty plea out of the defendant.