What happens after you have been charged with a criminal offence

Charged with a crime? Charged with a regulatory offence? What happens next …

Have you been accused of committing a crime? Navigating the criminal justice system, understanding your rights and obligations, and negotiating the most fair and appropriate sentence in the event of a finding of guilt is an extremely important process. People that become involved in this process should have a lawyer to properly advise and protect their best interests.

The Justice system…

Once an individual has been charged criminally that individual, innocent or not, is compelled to comply with the obligations of the Canadian criminal justice system. This includes court appearances and certain interactions with Identification Services depending on the nature of the offence. It may also include being held in custody until the matter is disposed of by the court.

Your first appearance…

During the initial court appearance the person alleged to have committed an offence may plead not guilty with a desire to proceed to trial, or plead guilty and await sentencing. Additionally, more time may be requested where the accused has not had sufficient time to understand the charges made against them.

The Crown Attorney…

The Crown Attorney has the task of overseeing your prosecution once a charge has been laid and an information sworn. That individual has the prosecutorial discretion in certain circumstances to withdraw a criminal charge that is before the courts or to continue with the prosecution of the charge. If the charge is withdrawn, it could be considered the equivalent of a dismissal of the charge, and the individual to whom the charge pertains, will not have a criminal record. However, it may also be the case that the charge could resurface at some point in the future. If the charge is withdrawn, your lawyer may apply to the appropriate authorities to ensure that all photographs and fingerprints taken by the identification service are destroyed.

A Crown Attorney may withdraw a charge for many reasons, many of which can be endorsed and supported by defence counsel in negotiations. Examples of situations where such a withdrawal may take place include successful completion of Youth Diversion, successful completion of requirements developed in Mental Health Court, a situation where the Accused/Defendant agrees to enter into a Peace Bond, and where the Crown Attorney assesses the strength of the case against an individual and comes to the conclusion that there is no reasonable prospect of conviction. Additionally, in certain cases the Crown Attorney may decide that a case should not proceed to trial as to do so would constitute an abuse of the court’s process. One example of this occurs where an undue delay between arrest and trial results in the accused being deprived of a fair trial. In this circumstance a stay of proceedings in the matter may be requested. If the proceedings are stayed, the proceedings may be re-instituted within a one year period after which the matter may no longer be carried on.

A finding of guilt …

Upon a finding of guilt, whether after trial or guilty plea, the judge may order any of a variety of sentences. This may range from a discharge to incarceration.

Discharge …

An individual may be granted an absolute discharge or a conditional discharge by the sentencing Judge. A discharge is not a criminal conviction. A person who receives a discharge is viewed in law as having no criminal convictions. However, it is a finding by the Court that an individual is culpable for and guilty of the offence charged. That one has been found guilty of an offence is information that will remain in the Canadian Police Information Centre for a certain number of years. A discharge may be granted conditionally upon the performance of some conditions contained in a probation order, or may be absolute with no conditions. Once conditions are satisfied and the probationary period ends, the discharge becomes absolute. All absolute discharges received on or after July 24, 1992, are removed from the criminal record after a period of one year from the date of sentence. All conditional discharges received on or after July 24, 1992, are removed from the criminal record three years following the date of the sentence.

Suspended Sentence, Fine, or Restitution …

A suspended sentence, fine, or order for restitution to be paid to a victim may result from a finding of guilt and a criminal conviction being entered. In each of these cases, the person found guilty will have a criminal record. A suspended sentence means that the court is suspending the passing of sentence and the individual charged is generally placed on probation for a period of up to three years. There are normally various conditions attached to the probation which may include community service, no contact with certain people, not being able to visit certain locations, or an order requiring the person convicted to attend counseling as directed by a Probation Officer.

If the Court orders a fine, the individual is ordinarily given a certain period of time to pay the fine, or in default there may be a term that the individual serve a number of days in jail. A restitution order is similar, but the amount is payable to some person or entity harmed by your offence as opposed to the state. This sum may go reduce related civil claims initiated by those harmed persons.

A record suspension …

There are other important implications when considering these sentences, notably an individual’s eligibility for a Record Suspension. The waiting period for a Record Suspension is ordinarily 5 years in the context of a summary conviction offence and 10 years in the context of an indictable offence. This time period commences upon the expiry of an individual’s sentence. If one can argue for a fine instead of a suspended sentence, that person may apply sooner for the Record Suspension.

Probation …

Where a person is found guilty of an offence and the Court directs a disposition of either a conditional discharge or a suspended sentence, the Court will impose a period of probation for a period up to three years in duration. During this period, the Court will impose various conditions. For example, if there is an alcohol or drug component to an offence, an individual will often be ordered to attend counseling related to abuse of that substance. Compliance with these obligations is monitored by a Probation Officer. In all circumstances, the party subject to the probation order must keep the peace and be of good behaviour. It is important to keep in mind that a Probation Order is an Order of the Court and breach of that order represent a criminal offence. An historic violation of court orders is always considered in sentencing and bail hearings to great negative effect.

Incarceration …

In the most serious of circumstances, a person convicted may have to serve a period of incarceration. A person who receives a custodial sentence of two years or more is placed in the federal penitentiary, where as an individual who receives a sentence of less than two years is placed in the provincial facility.

Following a conviction for a crime in Canada, it is possible to receive either a provincial or federal sentence. You may be convicted of a Criminal offence under either federal or provincial legislation. The province you are located in and the type of sentence you receive will determine which administrative bodies and what legislation will govern the framework of your sentence and its enforcement.

If the sentence involves incarceration and is a federal sentence then the Parole Board of Canada oversees decisions regarding parole and leave from custody (created under the Corrections and Conditional Release Act). This body is also entrusted with administration of the Criminal Records Act which deals with all criminal record suspensions. If you are serving a custodial federal sentence it would be served in a federal penitentiary and the governing legislation would be the Corrections and Conditional Release Act. Otherwise, you would be serving your custodial sentence in a provincial correctional facility. In Newfoundland and Labrador, the administration of the provincial correctional facilities is governed by the Correctional Services Act, SNL2011 cC-37.00001 s51.

With respect to a federal sentence, an inmate may be eligible for day parole as soon as one sixth of the way through their sentence, depending on its length. They may eligible for full parole after serving one third of their sentence as long as there is no minimum. Full parole is mandatory after two thirds of the sentence is served (although this may be denied on the recommendations of the Correction Service of Canada in certain circumstance). In the provincial system, an individual is eligible for parole after one third of their sentence. Parole is mandatory after two thirds of the sentence have been served.

The decision to grant or deny parole involves a thorough review of information and assessment of risk. The safety of the public is always the paramount consideration in all parole decisions. Day Parole allows an offender to participate in community-based activities in preparation for full parole or statutory release. Full parole allows an offender to serve part of their sentence in the community under supervision and specific conditions, in preparation for their eventual release into the community.

Conditional Sentences …

Where a court is of the view that the custodial sentence to be imposed in a particular case is in the reformatory range (less than two years) and where the offence itself attracts no minimum sentence in law, the court may order that the custodial sentence be served in the community. The court must be satisfied that there is no significant risk or danger to the community before this sentence is offered. If a person has a negative history in relation to court orders, probation or bail, or if the person has a significant recidivist criminal history, it is unlikely that a conditional sentence will be ordered.

In this circumstance, an individual is confined to their home except for medical emergencies, time for shopping and exercise, employment or to attend school. A conditional sentence supervisor from the appropriate corrections department monitors an individual’s progress similar to a Probation Officer. Where a person is alleged to have contravened a condition of their conditional sentence, a warrant is issued for their arrest and they are held for a conditional sentence breach hearing. At this stage, the remainder of sentence may be commuted to a custodial sentence, and some other penalty may also be imposed.

Criminal record …

A criminal record can have a profound impact on a person’s livelihood and ability to travel. Although criminal records can be suspended by a successful application for a Record Suspension, it is a discretionary process on the part of the Parole Board of Canada and the suspension may be revoked at any time if the feel you are not conducting yourself as a law-abiding citizen. You are eligible to apply for a Record Suspension 5 or 10 years after you have completed your sentence for your offence. The term depends on the nature of your sentence. There are additional provisions for the suspension of a life-time driving ban that may result in the context of impaired driving offences.

With respect to certain international travel, currently the United States Immigration department has a significant degree of discretion insofar as it relates to the admission of individuals with discharges or criminal records. Generally, the nature of the offence is their most significant consideration, although they may refuse anyone on this basis. To be safe, persons in this circumstance wishing to travel to the United States may purchase a special waiver that allows the person to visit. There is no specified waiting period to be eligible.  Waivers are granted on the following factors: the risk of harm to the United States if you are admitted; the seriousness of your offence(s); your stated purpose for entering the United States. Waivers are valid for periods ranging from one to five years. For a consultation in relation to the immigration implications of criminal conviction, you should contact one of the lawyer’s with Simmonds+Partners Defence.

Apart from a number of issues not listed here, a Criminal Record will also hold serious consequences with regards to obtaining certain licenses, accessing certain restricted areas, obtaining employment in certain areas, the assessment of certain insurance premiums, admittance into certain professional organizations, and maintaining current employment.

If you have any questions or would like to seek advice with regards to a Criminal Charge or Investigation, do not hesitate to contact our firm.