What is diversion and and I eligible to have my criminal charges withdrawn?

Of late I have received many calls and emails from people who are charged with a criminal offence asking me what is diversion and are they eligible. The short answer is “it depends” but i hope to shed a bit more light in this article on what diversion is, who is generally eligible, and what are the effects upon a criminal record if they accept it.

Question: So, what is “diversion”? Diversion means just that: an individual who is charged with a criminal offence is diverted out of the Court system and asked to provide some sort of reparation to society for their alleged wrong. This reparation will take the form of community service, a donation to charity, or a more specific program tailored to the individual’s specific life situation (as is often the case with people suffering from mental health issues). Upon completion of whatever terms the diversion is dependent upon, the charges are “withdrawn” meaning that you remain legally innocent of the charges. Since you are presumed innocent when you are charged until proven guilty, you remain legally innocent when your charges are withdrawn because the allegations were never proven in a Court of law against you.

Question: Who decides whether I am eligible for diversion? There is only one party who has the power to determine a person’s eligibility for diversion, and that person is the Crown Attorney (or the Office of the Crown Attorney). When a file first comes to the Crown’s office after bring processed by the police department, an initial screening of the file is made by the Crown Attorney. If the Crown Attorney decides that you are eligible for diversion, then the brief will be marked up accordingly and typically that accused person will be advised of that decision on their first day in Court. The factors that the Crown takes into account when assessing a file include, but are not limited to:

• Whether the person has a criminal record or past dealings with police;
• Cooperation with police upon arrest;
• The seriousness of the offence (amount of money lost, alleged harm done, etc.);
• The cost of prosecuting the case in comparison to the seriousness of the offence;
• The impact a criminal record may have upon an individual accused in comparison to society’s interest in ensuring are punished for wrongdoings; and,
• The wishes of the alleged victim.

It is also important to know that simply because a file is initially screened as ineligible does not mean that is the final decision. Despite a Crown Attorney’s initial view, they may be persuaded by legal counsel that a person is eligible after all. For this reason, it is wise to retain an experienced criminal lawyer to ensure that all possibilities for diversion are canvassed.

Question: What kind of charges are eligible for diversion? Technically, any type of charge may be eligible for diversion; however, the most common cases where diversion is routinely offered is theft under, possession of small amounts of marijuana, and solicitation of prostitution. Other offences where diversion is offered, albeit less common, include: mischief offences, assault, fraud, being found in a bawdy house, harder drug possession, and crimes where there is no large amounts of money lost and no serious physical violence. Again, retaining a lawyer could help convince a Crown Attorney to offer diversion when that person may not be initially eligible.

Question: Do I have to admit to anyone what I did? Generally speaking, when a person is accepted into the diversion program, it is contingent upon that individual accepting responsibility for their wrong. An extensive confession is not required. Typically, the social worker who is interviewing the person for an initial intake will ask questions like:

• Why did you do this?
• Do you understand this is wrong?
• Do you appreciate the costs to society in your actions?
• Do you appreciate the harm you have done to yourself, family, and friends and personal reputation in committing these offences?
• Have you learned your lesson?

If that worker feels that the person has learned their lesson and will not engage in similar acts in the future, that person will be advised what they will have to do (community service, etc.) in order to have their charges withdrawn.

Question: Is what I tell the diversion worker admissible against me at trial later on? Fortunately, all of the discussions you have with the diversion office for these purposes is confidential and cannot be used against you in Court later on. Section 717(3) of the Criminal Code of Canada clearly states:

No admission, confession or statement accepting responsibility for a given act or omission made by a person alleged to have committed an offence as a condition of the person being dealt with by alternative measures is admissible in evidence against that person in any civil or criminal proceedings.

This section is placed here by legislation to facilitate people who are eligible for diversion or “alternative measures” to engage in the process without the fear of reprisal for their admissions later on.

Question: Now that I am eligible for diversion, what happens next? Once you are eligible, you will return to Court and adjourn your case for as much time as required to complete the terms of diversion. For example, if a person is asked to complete 35 hours of community service, they will likely be adjourned for 3-4 weeks for them to complete it.

Question: Ok, I completed my terms, now what? When you return to Court after completing your terms of diversion, you or your lawyer will present the proof thereof to the Crown Attorney and Court and if everything is done in accordance with the agreement, your charges with be withdrawn.

Question: Should I retain a lawyer for this? Retaining a lawyer is always a prudent thing to do no matter how insignificant the charge may be; however, this is always a personal choice and some people choose to represent themselves. Some things to consider is that a lawyer can:

• Provide guidance, confidence, and ease of mind throughout the process;
• Appear on your behalf so that you do not need to miss work or feel embarrassed about being present in Court;
• Negotiate a better settlement with the Crown Attorney;
• Familiarize you with the proceedings and what is expected to happen;
• Follow up with the police department and request that your fingerprints, records, and photographs be destroyed upon the withdrawal of your charges;
• Provide you with the certified Court documentation that proves your charges were withdrawn;

If you wish to discuss these, or any other criminal law matters, I can be reached at (416) 220-0413 or you may visit my website at: www.criminallawyerintoronto.ca. I provide criminal defence legal services for all of Ontario.

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What is a Conditional or Absolute Discharge in Canadian Law?

When individuals are charged with certain offences like domestic assault, theft, or even drug possession, conditional and absolute discharges are offered by the Crown Attorney as an appropriate sentence for the offence – often followed by probationary periods or terms like PARS, drug rehabilitation, or counselling.  The article below is intended to give the reader a very general understanding of what conditional and absolute discharges mean under Canadian criminal law. 

It cannot be stressed enough that no article or text can match the wisdom and advice of an experienced criminal lawyer and if you or someone you know if facing charges, you should contact one immediately to discuss your options. 

Under the Criminal Code of Canada there are a wide array of sentences that an individual may receive after they are found guilty.  Those sentences include jail, fines, probation, conditional sentences (house arrest), restitution orders, and discharges.

Discharges are the most favourable on the range of sentences because they are no permanent “records” and will either be expunged from the CPIC (RCMP database) after a certain period has passed.

There are a few technical facts that one ought to know about discharges:

• A judge may impose a discharge for any criminal offence where there is not a specific statutory provision stating otherwise.
• If a person accepts a Crown offer for a conditional discharge, they are still required to admit facts that would meet the essential elements of the crime and are therefore found guilty by the judge.
• Although a person is found “guilty”, they are not “convicted”
• As stated, discharges are removed from certain police databases after a certain period of time
• If granted a discharge, a person may honestly answer that “They have never been convicted of a criminal offence”.  However, if asked “Have you ever been found guilty of a criminal offence?”  the answer would be “Yes”.

The applicable statute that sets out how discharges are to be dealt with is the Criminal Records Act, Chapter C-47, which states:

Discharges	6.1 (1) No record of a discharge under section 730 of the Criminal Code that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if (a) more than one year has elapsed since the offender was discharged absolutely; or (b) more than three years have elapsed since the offender was discharged on the conditions prescribed in a probation order.
Purging C.P.I.C.	(2) The Commissioner shall remove all references to a discharge under section 730 of the Criminal Code from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police on the expiration of the relevant period referred to in subsection (1). 1992, c. 22, s. 6; 1995, c. 22, s. 17(E).
Disclosure to police forces	6.2 Notwithstanding sections 6 and 6.1, the name, date of birth and last known address of a person who has received a pardon or a discharge referred to in section 6.1 may be disclosed to a police force if a fingerprint, identified as that of the person, is found (a) at the scene of a crime during an investigation of the crime; or (b) during an attempt to identify a deceased person or a person suffering from amnesia. 1992, c. 22, s. 6.

As we can see above, discharges take two forms: a discharge with conditions (i.e. a “conditional discharge”) and a discharge without conditions (i.e. an “absolute discharge”). 

With a conditional discharge, the person’s records in CPIC are not expunged until three years after the completion of the terms of the conditions set out in the probation order.  As an example, if a person was granted a conditional discharge on March 1, 2009 with conditions for 12 months (like keep the peace and be of good behaviour), then the date of expunging would be 12 months + 3 years = March 1, 2013.

Alternatively, an absolute discharge would be one year after the date the discharge was imposed.  using the same example, the date of expunging would be March 1, 2010.

There are also several practical considerations that ought to be taken into account and discussed with your lawyer:

• Expunging records from CPIC will not necessarily mean that the police department who made the arrest will necessarily follow the same rules.  Some police forces take the view that they will retain the records regardless of the outcome and may be disclosed in certain circumstances.
• Different jurisdictions outside of Canada may take a very different view of discharges and not necessarily consider these as pardons like the Canadian law presently does.

It is critically important that before accepting any such offer by the Crown Attorney, and deciding whether a discharge is appropriate for your particular set of circumstances, that you speak to an experienced criminal defence lawyer who can explain in greater detail all the benefits and disadvantages of discharges.  I can be reached at (416) 220-0413 for a consultation or you may visit my website at www.criminallawyerintoronto.ca for more information.

The Legal Aid Boycott: What Exactly is Being Boycotted and By Whom?

 

Not to help justice in her need would be an impiety. - Plato

Since the Legal Aid Ontario Boycott implemented by the Criminal Lawyer’s Association Members and further strengthen by support by the criminal bar at large, there has been wide coverage by media and interest by the public at large.  This issue of of critical importance to our justice system at large; without an equal balance between the participants, there can be no justice.  The entire notion of justice is premised on fairness, equality, and access.  Without proper funding for less fortunate individuals charged with offences, the entire structure of the justice system is unstable and threatens the rule of law at large.

In discussing the reasons for accepting the boycott, many have asked me what exactly is being boycotted and by whom.  So to answer those questions,

The boycott is as follows:

1. Where the lawyer is a member of the LAO ESM panel or is qualified to become a member of the ESM panel, AND

2. where the certificate is for the defence of an individual who is charged with

(a)   murder or attempted murder, OR

(b)   as the result of an investigation by the "guns and gangs" squad and/or is being prosecuted by the "guns and gangs" team, OR (c)  where the certificate is for representation on an appeal against conviction and/or sentence for any of the aforementioned offences, AND

3. where the prosecution of the individual is to take place in the one of the following cities or nearby municipalities: Toronto, Thunder Bay, Kingston, Barrie, Sudbury and Hamilton, or, in the case of an appeal, where the trial took place within the aforementioned jurisdictions OR where the lawyer's office is located within one of the aforementioned jurisdictions, AND

4. where the individual was arrested on or after the following dates or, in the case of an appeal, where the individual was sentenced on or after the following dates: In the case of Toronto, June 1, 2009, for Thunder Bay and Kingston, June 17, 2009 and for Barrie, Sudbury and Hamilton, July 1, 2009.

5. It remains CLA policy that all members should refuse any appointment by a court to act as counsel in any circumstances where fees are to be paid by the Crown at Legal Aid rates (e.g. amicus, O'Connor applications, etc.) in any jurisdiction and in relation to any matter.

Here is a collection of all the media releases that I have come across relating to the Legal Aid boycott:

Guelph lawyers join Ontario legal aid boycott - Guelph Mercury - ‎Jul 4, 2009‎

Legal aid boycott gathering strength – Kirk Makin, Globe and Mail, July 4, 2009

Legal aid boycott grows TbNewsWatch.com - ‎Jul 3, 2009‎

Lawyers join legal aid boycott Hamilton Spectator - ‎Jul 3, 2009‎

Lawyers join legal aid boycott Hamilton Spectator - ‎Jul 3, 2009‎

Law profs say legal aid Ontario weak – June 29, 2009

Law Professors Support Legal Aid boycott – Globe and Mail, Kirk Makin, June 28, 2009

Local lawyers boycotting legal aid - Belleville Intelligencer, June 20

More lawyers join boycott of legal aid - The Globe and Mail, 16 Jun 2009, Kirk Makin

Sudbury lawyers to boycott legal aid plan – North Bay Nugget, June 16, 2009

Local lawyers ponder joining boycott – Kingston Whig Standard, June 15, 2009

TheStar.com | Ontario | Lawyers throw weight behind legal aid boycott – June 14, 2009

Ontario’s Legal Aid impasses requires compromises – Orangeville Citizen, June 11, 2009

Criminal lawyers protest Legal Aid fees - The Sudbury Star, June 10, 2009

The System is Broken – Law Times, June 8, 2009

Who are they kidding? Lawyers love legal aid – Christie Blatchford, Globe and Mail, June 6, 2009

CBC Current Show on Announcement by The Criminal Lawyer's Association to commence boycott – June 3, 2009

Toronto criminal lawyers threaten boycott unless legal aid rates rise – CBC.ca, June 2, 2009

Support the Legal Aid increase by calling your MPP today.

Legal Fees: Flat fees vs. Hourly Rates

In this week’s Lawyer’s Weekly, Lonny Babli discusses the advantages of a flat rate billing model versus the hourly rate model that lawyers have traditionally adopted.

Balbi makes a number of interesting points including a telling anecdote of Merv Griffin writing the theme song to Jeopardy in about a minute. The anecdote illustrates that even though the ultimate value of the song has netted Merv $7 million over the years, that value has little, if anything to do with the time associated with it.

As also pointed out, “most businesses do not equate time with money”. The same can be said for any individual who is facing a legal problem.

Using domestic assault as an example, a person who is charged has very specific goals in mind with certain aspects they are not willing to compromise on. The goals may include: 1) a withdrawal or acquittal of charges, 2) reconciliation and restoration of communication and contact with the complainant, 3) no criminal record that may affect employment, and lastly, an expediency in obtaining these results.

With goals come hurdles that the client may or may not be compromising on. Continuing on the domestic assault example, hurdles might include: 1) whether they are willing to enrol in counselling, 2) whether they are willing to accept responsibility in any manner whatsoever, 3) the length of the proceedings, and 4) the cost of the matter.

Like businesses, people charges with criminal offences look to the bottom line in making assessments in retaining their lawyer and the value they attribute to it. Even though we as lawyers are often selling our time, it is actually results that the client wishes to obtain – the time, manner, or effort required to obtain those results is largely inconsequential to them. Much like Merv Griffin humming and selling the catchy tune of Jeopardy in seven minutes, clients would be delighted if their lawyers were able to obtain the ultimate result in such short order.

Balbi’s suggestions of adopting anew business model for lawyers to operate on flat rates is a wise and one that I implement whenever possible. Having a flat rate has a number of advantages for the lawyer and client that are often overlooked. Those include:

• Certainty in cost / accounts receivable;
• Alignment of interests (both parties want the matter to end to each other’s satisfaction as quickly as possible)
• Clarity in objectives using a task-based model of value
• Easier administrative aspects to collecting retainers

Although not possible for all files, I highly recommend that any lawyers, particularly those in criminal law, consider a fee-based system of retainer and assess whether the serves you and your client's needs are better met.