Test your criminal law knowledge

Do you know what happens to a person after he/she is arrested for committing a crime and released from police custody? Do you know about the court appearances that an accused person has to make before his/her trial date?

If you don’t know, you’re not alone. From reading the news, it seems like a lot of journalists don’t understand basic criminal procedure, either.

That is the subject of this week’s column topic.

Each province has its own rules on how criminal cases move through the criminal court system.

 

We, in British Columbia, have the Criminal Caseflow Management Rules, which provides the rules on how an offender makes his/her way through the courts (before eventually going to trial). These Rules were created (and came into force in 1999) after discussions with Crown prosecutors, criminal defence lawyers, and judges.

Here is the typical process of how someone, after arrested, arrives at a trial date:

After someone is arrested for committing a crime, they are typically given some paperwork from the police officer that requires them to go to court on a particular date for a ‘First Appearance’.

At the First Appearance, the Crown prosecutor provides the accused person with their ‘particulars’, which is a package of documents that includes police notes, photographs, witness statements, and everything else that the Crown has regarding that criminal charge. The Crown will also provide their ‘Initial Sentencing Position’ to the accused, which is (as it sounds) the sentencing position that Crown is proposing (if the accused were to plead guilty).

Typically, the file is then adjourned/put off for a few weeks, allowing the accused to find a lawyer and/or decide what he/she wants to do (after reviewing the particulars).

The next court appearance is called the ‘Arraignment Hearing’. At that hearing, the accused pleads guilty or not guilty. If the accused pleads not guilty, then a trial date is booked and both sides (the Crown and the Defence) will give their time estimate of how long the trial will take to complete. If the accused pleads guilty, then a date will be fixed for sentencing (and the accused is sentenced on that date).

For your information, the Arraignment Hearing is often adjourned several times, allowing Crown and defence to thoroughly review their cases and determine if a sentencing agreement (between them) can be reached – i.e. if a plea agreement/bargain can be made.

Assuming the accused entered a not guilty plea and is proceeding to trial, the next appearance for the accused is called a ‘Trial Confirmation Hearing’. This hearing occurs approximately 45 to 30 days before the trial date. At this hearing, the Crown and the defence need to be able to tell the Court/Judge that they are ready to go to trial.

As you can imagine, before this hearing, Crown and defence need to thoroughly review and prepare the case. Here, it may become obvious to either Crown or defence that their case has problems (which may or may not able to be fixed). So, at this stage, it shouldn’t be surprising that many files are settled (and plea bargains/deals are made).

So, what is the purpose of these Rules? Well, if you can’t guess, they are intended to make every appearance meaningful and to screen out the cases that shouldn’t go to trial. The Rules are GOOD.

To illustrate, before the Rules came into force in 1999, there was no rule that required Crown or defence to look at their files before trial.

So, not surprisingly, Crown and defence often did not see the problems /holes with their cases (ex. poor/resistant witnesses) until just before the trial. So, on the trial date (at the last minute), many cases would collapse/be resolved with plea bargains. This would leave holes in the courthouse’s trial schedule, wasting everyone’s time (and money).

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on January 8, 2013: Test your criminal law knowledge.

The scary thing about jury trials

When going to court, the thought of a jury can be terrifying (even to the lawyers). They are completely unpredictable, but are still one of the best ways to settle disputes.

There is a lot of public confusion around juries, so this column is intended to shed some light.

To start, a jury is a group of people who are gathered in court to listen to each side in a dispute/trial and then make a decision. Throughout the trial, a judge gives instructions to the jury on the appropriate law.

The process of using juries is very old, dating back to ancient tribal cultures when communities used several honourable community members to judge another person’s actions (and decide their fate).

Jury trials are not common. Trials are typically heard in front of judges alone. Juries will typically occur in serious criminal matters when someone stands to go to trial for five years or more. Juries can also occur in civil cases, too, such as in personal injury cases. But, again, juries are rare.

In civil cases, a jury is composed of eight people. In criminal trials, a jury is composed of twelve people.

After coming to a decision, a jury does not have to give reasons for their decision and it is against the rules to disclose what goes on in jury deliberations.

So, who can be on a jury? Well, not everyone: see section 3 of the Jury Act.

To start, people who work in the justice system are excluded from being on a jury, which includes lawyers, police, judges, and correctional officers. Politicians are excluded, too; MPs and MLAs cannot serve on a jury.

Also, people who are under 19, who are not Canadian citizens, who are not residents of B.C., and who have been convicted (or are currently charged) with a Criminal Code or drug offence cannot be on a jury.

Even if you meet the basic requirements to be on a jury, it does not guarantee that you’ll sit on a jury. Before trial, lawyers go through a selection process with potential jurors to ensure that the jury is fair (particularly for their client).

Juries have tremendous power: they do not have to follow the rules. I’ll explain…

While instructed by a judge about the law, the jury does not have to follow the law, which includes laws made by judges (i.e. common law) and laws made by politicians (i.e. legislation). This allows juries to decide cases where the law conflicts with justice.

Here is an example of a jury refusing to apply the law:

In the 1970s, Dr. Henry Morgentaler performed abortions that did not fit within the narrow exceptions allowing abortion (during that time). In the 1970s, Dr. Morgentaler was tried three times for defying the anti-abortion law. Clearly, he was guilty of the offences. But, the jury found that the anti-abortion law was unjust and took the law into their hands, finding Dr. Morgentaler ‘not guilty’ each time.

When juries refuse to enforce a law that they think is unfair (and render a different verdict not supported in law), it is referred to as ‘jury nullification’.

Clearly, juries are able to base their judgments on emotion, rather than rational or logical argument. This isn’t always a good thing…

In America, there was an analysis looking at racism on juries. It was found that, in serious criminal cases, juries were more likely to convict black defendants than white defendants. It was also found that having a jury member with a different racial background often eliminated individual prejudices (and eliminated the gap in conviction rates among different races).

While there can be problems, juries should represent the community and will likely make judgments that are in accordance with community values (and the law).

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on December 11, 2012: The scary thing about jury trials.

Kids committing crimes?

Kids make mistakes. That’s inevitable. These mistakes range from stupid to criminal.

When youths commit crimes, there is a lot of confusion over how these youths are dealt with. This confusion seems to lead to (misplaced) anger and frustration at our justice system.

In response to that public frustration, I write this column, explaining some of the legal issues involved when kids commit crimes.

 

To begin, the applicable law when dealing with kids/youths who commit crimes is the Youth Criminal Justice Act, S.C. 2002, c. 1. For your information, youths are those under the age of 18. Those who are 18 or over are considered adults.

Youths who commit crimes are subject to different rules (compared to adults). Why? Well, it’s obvious: they’re kids. Here are some of those differences:

When youths are first found committing a crime, police and prosecutors have a responsibility to consider alternative ways (other than criminal court) to help the youth ‘learn his/her lesson’. This could include giving a warning, talking to the youth’s parents, or sending the youth to some rehabilitative/educational program.

Another difference is that a youth, when arrested, is entitled to speak with a lawyer AND with his/her parent/guardian. Statements made by the youth without those rights could be inadmissible in court. Police officers would be wise to follow this rule.

Next, if the child is charged with a crime and taken to court, then the youth is less likely to be kept in custody while awaiting trial (compared to an adult). This makes sense: it is undoubtedly better for the youth’s rehabilitation to be with his/her parents than in jail.

Also, if a youth is taken to court, there will be a ban on the publication of the name of the youth. As well, access to the records of youths is strictly monitored. Obviously, this is important: if a youth’s name is made public, then the mistakes of that youth could affect the rest of his/her life.

Next, if the youth is convicted of a crime, then the youth is less likely to spend time in jail (compared to an adult). See section 38 of the Youth Criminal Justice Act.

I recognize that this makes some people angry. Some people want children to sit in jail cells to ‘learn their lesson’ (even for minor offences). But, think about it: very little is gained from sending a child to jail, except potentially ‘hardening’ that child, hurting their chances at rehabilitation. Jail doesn’t always help; it often hurts.

Instead of jail, convicted youths are more likely to be referred to programs that helps educate and rehabilitate them, ensuring that they lead productive and law-abiding lives. Youth sentences can also include the youth financially compensating victims (in vandalism-type cases), writing apology letters, receiving counselling, completing community service, or taking educational programs/courses.

If a youth commits a serious enough crime, like murder or manslaughter, then Crown Counsel could try to have the youth receive an adult sentence (i.e. life in prison). Whether or not an adult sentence is pursued will depend on the circumstances of the crime and on the circumstances of the youth. See section 72 of the Youth Criminal Justice Act.

But, with that said, even if the youth is given an adult sentence, the parole eligibility date will be much sooner (compared to an adult offender). For instance, when youths receive (adult) life sentences for murder, parole eligibility for youths is between 5 and 10 years, depending on the age of the child and the nature of the offence. See section 745.1 of the Criminal Code. Also see the following link, explaining parole: Parole explained.

I recognize that the seemingly ‘soft-approach’ to youth crime makes some people very upset. But, to those people: consider that when the ‘soft-approach’ (i.e. the Youth Criminal Justice Act) was introduced in Canada, that there was a 4% drop in police-reported youth crime, a 17% drop in youth court charges, and a 22% drop in youth homicides.

Here’s this week’s final thought: it is inevitable that children will commit crimes. So, ask yourself this: is our community better served by harshly punishing children or helping children get their lives back on track?

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on December 4, 2012: Kids committing crimes?

Bullying (and legal consequences!)

Do you have a lot of great memories from high school?

 

High school can be fun. But, because of bullies, high school can also be a never-ending stream of embarrassing and frustrating ‘experiences’. And for some people, it’s much worse…

I am sure that by now, we’ve all heard of Amanda Todd, the young and tragic victim of bullying: Amanda Todd’s heart-wrenching story.

Her story isn’t even uncommon…

The 3rd leading cause of death among youths is suicide and at least half of all youth suicides are related to bullying. Suicide from bullying is so common among youths that it has been termed, “bullycide”. What a complete disgrace that it has got to this point…

Amanda Todd’s story has sparked A LOT of interest in how to use the law to stop bullying. And some of the proposed strategies are better than others.

After the tragedy, Premier Christy Clark discussed creating laws to criminalize cyber-bullying and to more severely punish the ‘bully’: Christy Clark says new laws are needed to combat bullying. Christy Clark wasn’t the only one with this idea. Here is an online petition, attempting to criminalize cyber-bullying: Petition to stop bullying.

I appreciate the good intentions in trying to create new, tough laws to stop cyber-bullying. But, quite frankly, creating new, tough laws is a very poor solution to bullying. Criminal law is a blunt tool and not the best way to deal with this social problem.

Maybe I am alone, but I have a very tough time believing that the Criminal Code or other punishing laws will be used against bullies in grade school. I can’t see Crown Prosecutors approving charges against school-yard bullies and I can’t see police officers spending much time investigating into such cases, either.

Also, for your information, the Criminal Code already deals with bully-type behaviour. For instance, it is a crime to threaten another person or another person’s property (section 264.1 of Criminal Code). It is also a crime to harass, follow, or repeatedly communicate with a person, causing that person to fear for their safety (section 264 of Criminal Code). For your information, this section is often used in cases where an ex-boyfriend continues to follow around his ex-girlfriend (i.e. in ‘stalking’ cases).

So, what is a better legal strategy to combat bullying? Well, in a previous column, I suggested suing the school authorities if the children are not protected: Bullies, schools, and lawsuits.

The argument was as follows: there is a legal obligation that children receive schooling and, if children attend a public school, school authorities owe a duty to keep those children safe and protected against preventable and foreseeable harm, including harm from other children. If school authorities fail in keeping children safe from preventable harm, then the school authorities should be held accountable. And, if schools are held (financially) accountable, then school authorities are fiscally motivated and will do whatever they can to prevent and detect bullying.

School authorities have been sued in these types of cases all over Canada: Taking schools to court. This is great. It is also great that, in September 2012, the Supreme Court of Canada ruled that a youth could hide her identity when she launches legal action against cyber-bullies: Top court protects anonymity.

The downside to civil litigation (i.e. suing schools) is that litigation is expensive and slow. While it may (eventually) get justice for the victim, it is hardly the best way to deal with a school-yard bully.

So, can the ‘law’ really be used to help stop bullying? Answer: yes, BUT there also needs to be A LOT of work done in other areas, like parenting and in the education system (to stop bullying before it starts or stop it immediately after it starts).

There is no way that I can fully address this topic in this column. But, before I conclude, I will say that I was excited to hear about a new online tool for students to report bullying. Using this online tool, students could anonymously report instances of bullying. The reports would then be sent to school coordinators who would decide whether or not school authorities should investigate or whether or not police should be involved.

In closing, I am happy that there are some great efforts being made. But, with that said, it is infuriating that another person had to die before this issue got the attention that it deserves.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on November 20, 2012: Bullying and legal consequences.

Jail is hell: choose wisely

Maybe you have been to a jail… If you have, you might have some insight on this week’s column topic.

I’ve been to a few jails (for work, of course). Contrary to some public opinion, they are not ‘cozy’ places where criminals sit around and play video games. It’s the opposite – and quite frankly, jail is hellish.

 

There are two types of jails (places where offenders ‘do time’): prisons and penitentiaries. People use these terms interchangeably, but that is wrong. They are very different.

You have probably watched the news and heard of someone being sentenced to “two years less a day” or “two years plus a day”. You probably wondered what that meant… I’ll explain it.

When someone is sentenced to two years plus a day, they serve their sentence in a penitentiary. When someone is sentenced to two years less a day, they serve their sentence in a prison. It’s that simple. See section 743.1 of the Criminal Code.

So, what is the difference between a penitentiary and a prison? Well, there are plenty.

First, penitentiaries are run federally and prisons are run provincially. But, that isn’t so important for offenders. Here are a few things that do matter to those people who stand to do jail time…

Prisons tend to be more local, allowing the offender to stay closer to their friends/family, which can keep the offender happy and, more importantly, can make the offender more likely to rehabilitate.

Also, penitentiaries are typically thought to have better treatment programs for offenders. So, if an offender has a history of sexual, violence-related, or intellectual problems, then a penitentiary might be better for that offender. They could receive treatment and then be more likely to rehabilitate.

Climate/atmosphere can also be significantly different between prisons and penitentiaries. Offenders who are in penitentiaries are typically more serious criminals and habitual re-offenders, whereas offenders kept in prisons are typically pettier criminals and drug addicts.

Based on these (as well as many other) factors, an offender may prefer being sent to a penitentiary (or a prison) and could then argue for more (or less) than 2 years of jail time (whichever will get them into their desired institution).

As a final thought, remember that the federal government passed Bill C-10 earlier this year, which, among other things, (foolishly) puts more people in jail: Contentious tory crime bill passes as country’s biggest provinces voice concern over costs. If you don’t know my stance already, I have stated in several columns that ‘tough on crime’ laws are HORRENDOUSLY misguided: Do severe punishments deter crime? and Batman, police, and lowering crime.

With the new changes, you can expect jails to be more (over)crowded and you can expect the ability of jails to offer rehabilitative programs to decrease. I hope that I am proven wrong, but I am not that optimistic.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on October 23, 2012: Jail is hell: choose wisely.

Is killing cheating sex-partner justified?

Have you ever been so mad that you could ‘just kill someone’?

Believe it or not, being provoked can be a defence to murder. I can already see eyes rolling. Let me explain…

Provocation, as it is called, is a partial defence to murder. The controversial defence only reduces a murder conviction to a manslaughter conviction, which, of course, generally comes with a much less severe sentence. As you can see, the defence does not provide the ‘murderer’ with a ‘Get Out of Jail Free’ card.

Basically, the law gives SOME leniency for when people lose their temper in the face of being provoked. It’s thought that if a murder victim provoked the ‘murderer’ in such a way that it caused them to lose control, then the killing is somehow less blameworthy/ heinous. Maybe you agree?

So, how does one prove the defence of provocation? How does someone actually use it? Well, there are a several requirements, as set out in section 232(2) of the Criminal Code. Basically, in order to be successful, the ‘murderer’ must show that they were provoked by another person (the murder victim) in such a way that it would cause an ordinary person to lose his/her self-control and the ‘murderer’ was acting suddenly before his/her passion had time to cool (i.e. before he/she regained self-control).

Here’s an example: Imagine you unexpectedly come across a stranger seriously harming (i.e. sexually assaulting) a family member. If you responded with deadly force (killing the stranger), this may be a situation in which you could try to claim provocation (and be successful).

So, how successful is this defence? Well, you might have guessed that it isn’t successful very often. In a study, it was found that, when it is used, it is typically successful less than 10% of the time. It is most successful when used by a male for killing another male who was in an intimate relationship with the ‘murderer’s’ ex-wife.

Here’s a real-world example of when the defence was not successful: In R. v. Hill, [1986] 1 S.C.R. 313, a 16-year-old male killed another male who had allegedly made sexual advances toward him, causing the 16-year-old to (apparently) lose control. Clearly, the defence failed (and for good reason, too).

Here’s another real-world example of when it was not successful: In R. v. Ly (1987), 33 C.C.C. (3d) 31 (B.C.C.A.), a man, who was a recent immigrant from Vietnam to Canada, suspected that his wife wasn’t being faithful. On one occasion, she returned home early in the morning, causing him to ask about her whereabouts the previous evening. She replied, “Don’t ask me. It’s none of your business.” The man then strangled and killed her. He argued that, in Vietnamese culture, a wife’s adultery is extremely insulting, which caused him to rage. The Court held that ethnic background was not relevant in this situation and the defence was not successful.

Here’s another one: In R. v. Tran, 2010 SCC 58, an Edmonton man stabbed his estranged wife’s boyfriend to death after finding them naked in bed together. Mr. Tran tried to argue provocation, but that was rejected. Mr. Tran was, instead, given a second-degree murder conviction.

Maybe you think the defence is appropriate. Or, maybe you don’t. Some say that it accepts or even promotes patterns of violence and that it blames the victims.

With that said, though, in 2001, the federal government stated that it would not make any changes to the provocation defence. From their research, the general consensus was that, in very limited circumstances, the defence was legitimate.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on October 9, 2012: Killing cheating sex-partner justified?

Buying cocaine or baking powder?

Drugs are insanely widespread.

Statistics on drug use vary, which isn’t surprising with the ‘self-reporting’ nature of those stats.

But, according to some stats, approximately 1/3 of youths (15 to 24 years old) have used marijuana in the past year. Other illicit drugs are less widespread, but according to some stats, 5-10% of youths have used one of the following illicit drugs in the past year: cocaine, speed, ecstasy, hallucinogens, or heroin.

Unless all users are growing or making all their own drugs, there must be a lot of buying and selling going on (which is obviously a criminal offence: Controlled Drugs and Substances Act, S.C. 1996, c. 19).

Now, with all that buying and selling, it is bound to happen that someone buys a substance that is claimed to be a drug, but isn’t… We’ve all heard these stories, mostly on television: someone thinks they bought a drug, but they actually bought oregano or baking powder.

If that happens, is it still illegal? If someone buys baking powder, is that really illegal? There wasn’t any harm, right?

Here’s the reality: attempting to buy a drug (and then inadvertently buying something that isn’t a drug) is still a crime. Put another way, ATTEMPTING to commit a crime is still a crime (section 24 of the Criminal Code). This is true regardless of whether or not it is possible under the circumstances to commit the offence.

Consider the following case: United States of America v. Dynar, [1997] 2 S.C.R. 462. Here, the accused person laundered money which he thought was the proceeds of crime. In this case, however, the police were conducting a sting operation and the money was not actually the proceeds of crime. So, in these circumstances, it was legally impossible to commit the crime. But, despite that impossibility, there was no bar in convicting the accused of attempting to launder the proceeds of crime. The attempt was still there…

Section 463 of the Code sets out the penalties for an attempted crime. Generally, the maximum penalty is half of what is available for the completed offence, except if otherwise stated in the Code. For instance, a person convicted of attempted murder can receive life imprisonment (s. 239 of the Code).

So, why are attempts illegal? Why punish someone who hasn’t actually completed a crime?

There are a few reasons.

First, there is a moral issue: people who attempt to commit a crime are demonstrating that they are inclined/willing to commit a criminal act. Clearly, someone who attempts to commit a crime deserves to be punished.

Also, if people who attempt to commit crimes are punished, then (hopefully) that will deter some people from committing the crime (or attempting to commit the crime).

Bottom-line: whether or not you actually buy real drugs, attempting to buy drugs will get you into trouble. So, don’t be stupid.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on September 4, 2012: Buying cocaine or baking powder?

Batman, police, and lowering crime

I recently saw the new Batman movie, The Dark Knight Rises, and it got me thinking…

I won’t spoil the movie for you, but I will tell you that it starts with a totally ridiculous premise: that a ‘tough on crime’ approach is effective.

The movie starts out with how Gotham City’s crime has significant decreased (if not disappeared) because of some ‘tough on crime’ law, called the Dent Act. The movie lost me here….

The idea that ‘tough on crime’ laws actually decrease crime is totally backwards. A lot of research has been done on this issue and nothing indicates that ‘tough on crime’ laws actually work. In fact, it’s been shown that ‘tough on crime’ laws (that put more people in jail) actually lead to increase in crime.

As stated in a previous column, Severe Punishments, there was an analysis in 1999 of over 50 studies, (involving over 336,000 offenders), which showed that prison sentences do not decrease the rate of re-offending. Prison sentences actually produce an INCREASE in re-offending.

So, what does lower crime? Well, addressing poverty and drug/alcohol use would be a great start: How To Prevent Crime. But, besides that, CERTAINTY of being caught and punished is actually a better deterrent of crime than ‘tough on crime’ laws.

So, how do we get there? How do we increase the certainty of punishment/being caught?

Sadly, we don’t have Batman. But, we do have crime fighters: police.

The problem we have though, is that police investigations often leave the door open, allowing criminals to ‘get off’ (hate that term)… I’ll explain….

When a criminal defence lawyer gets a new file, he/she typically combs through it, looking for mistakes (during the investigation). If mistakes were made (that violated someone’s Charter rights), then the investigation could be compromised and charges could go ‘poof’ (up in smoke).

When combing through criminal files, I, too, have thought, “If the federal government was so concerned about getting criminals off the streets, why isn’t more money/time spent on ensuring that criminal investigations are seamless?”

Before you jump down my throat and call me a ‘police hater’, let me explain. I respect and honour police. They put their lives at risk every day to ensure that we are safe and they do their best to take a ‘bite out of crime’. We all owe them a debt. But, there is room for improvement.

Criminal law is complicated and police have rules to follow. Those rules preserve our right to be free from police coming within our homes (and rummaging about). These rules also protect us from being arrested for no reason and also provide us with access to a lawyer after we are ‘taken in’.

I want our police to know these rules, inside and out. And, I want them to be able to follow these rules and make those hard decisions every time, preventing criminals from ‘getting off’. I bet that police want the same thing…

Now, I have heard some (frustrated) police say that it is very easy for lawyers to criticize police decisions ‘made in the moment’ and that hindsight is 20/20. Yes, that might be so. But, not all police decisions are made under blazing gunfire. We expect our doctors, lawyers, nurses, and other skilled workers to make correct decisions in the ‘heat of the moment’… Mistakes will inevitably be made; we’re all human, but there’s room for improvement.

Some police officers seem to rarely make mistakes (which is fantastic). But, at the same time, we know that some police make mistakes… Whenever you hear that someone charged with a crime ‘got off’ through a ‘loophole’ or a ‘technicality’, it often means that a police officer didn’t follow the rules…

So, what can we do?

Well, one thing that has been tried is changing the laws, decreasing the hurdles that police have to jump over, which is what happened with impaired driving laws in BC: Decriminalizing Drunk Driving.

I have a better idea: how about provide police with more legal training? Really, who can say that more training/knowledge isn’t a good thing, whether for a police officer or for any other skilled professional? We have a saying at our office: “legal research is never a waste of time”.

Or, how about hire more officers so the existing officers aren’t stretched at the seams? If that happens, maybe officers will be better able to confer with each other about tough decisions.

And with all that said, I am proud of our officers and wouldn’t trade them for Batman.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on July 24, 2012: Batman, police, and lowering crime.

Jail, two-for-one credit, and politics

Some politicians have a low opinion of the public. At least that’s how it seems when you look at some of their decisions…

Let’s back up to February 2010.

At that time, the Federal Government’s Truth in Sentencing Act, also referred to as Bill C-25, came into effect. The change is reflected in section 719 of the Criminal Code.

Put simply, the Act limited the time that courts (judges) could assign to pre-trial custody, tossing out the two-for-one credit that had been applied in many Canadian courtrooms. Now, judges are ONLY allowed to give straight time (one-for-one credit) for time spent in pre-trial custody, except in EXCEPTIONAL circumstances, when a 1.5 for 1 credit could be given.

Here’s some background: sometimes offenders are held in custody (before trial) for an alleged crime. This happens more with serious crimes. If those offenders were found guilty, then (before February 2010) the judge (using his/her discretion) could grant the offender two-for-one credit (or some other amount) for that time spent in pre-trial custody.

Here is an example: if an offender is given two-for-one credit, then 2 months spent in pre-trial custody counts as 4 months spent in post-trial custody.

Two-for-one (or some other) credit was NOT automatically given by judges.

You may be asking, “What is the point of giving the extra credit?” Well, there are a few reasons.

For one, pre-trial custody is generally thought to be ‘harsher’. In pre-trial custody, the offender is housed in their cell for longer periods of time, sometimes 23 to 24 hours a day. Sometimes, the cell is being shared by several people… Also, in pre-trial, offenders typically don’t have access to rehabilitative programs. Basically, the nature of the confinement is worse.

There are a number of cases that discuss poor pre-trial custody conditions. Some of the more horrific cases involve prisoners sleeping on the floor, eating on their toilet, and getting skin diseases from the facility. In those cases, the judge ordered that additional credit be given to the offender.

Also, and more importantly, pre-trial custody is ‘dead-time’, meaning parole eligibility doesn’t apply to pre-trial custody. To explain, remember that an offender will often get released on parole after 2/3 of their sentence is served. But, with pre-trial custody, that time is not taken into consideration for parole. I discussed parole eligibility in a previous column: Parole Explained.

The bottom-line, though, was that (before the changes in 2010) judges had the power and discretion to decide whether or not to give credit (and how much credit to give) for time spent in custody. This was the way things were done in Canada for a long time.

So, with good reasons for giving credit for pre-trial custody and with the power to give credit in the hands of capable judges, why would the federal government want to mess with that?

Well, the federal government believed that most Canadians were NOT in favour of giving extra credit to persons convicted with criminal offences. The Feds also wanted to appear ‘tough on crime’ (and they want votes).

When rolling out the changes, the federal government provided several reasons in support, such as greater transparency in sentencing decisions and less clogging of the courts: Legislative Summary. Of course, there wasn’t any proof that any of these positive effects would occur (or have occurred).

Also, the federal government said that some lawyers were deliberately delaying proceedings so that their clients could be given two-for-one credit and thus shorter terms of imprisonment. This is a pretty serious accusation (with, of course, no proof).

The point is: the federal government changed something that didn’t need to be changed and tied the hands of judges who are more capable and qualified to decide when to grant credit for pre-trial custody than the government or the public.

In making these changes, the federal government relied on the public not understanding the process, as well as the public’s blind hatred of criminals. It doesn’t speak very highly of the politicians (or the public).

This is why I write these columns: I encourage everyone to research and dig beneath the surface. If it turns out that you agree with the government’s decisions, then great – at least you came to your own conclusion (and are not a political pawn).

Really, though, we should have seen that these changes were ‘political theatre’ from a mile away by just looking at the sensationalistic and ill-suited title for the law: Truth In Sentencing Act.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on June 17, 2012: Jail, two-for-one credit, and politics.

Pay fine or go to jail?

Ever wonder about the power of a criminal court to issue a fine and what happens when an offender doesn’t pay that fine? This column attempts to shed some light on these and other related issues.

To start, section 734 of the Criminal Code allows a court to impose a fine on an offender. A fine can be an offender’s only sentence or it can be imposed in addition to a jail term or probation. The maximum fine for summary conviction offences is $2,000.00, unless otherwise said in the Code. Summary conviction offences are those offences that are ‘relatively’ minor. For indictable offences (more serious offences), there is no limit on the amount of the fine (that can be given). Except for mandatory minimums, fines are imposed after the court reviews the offender’s ability to pay.

Offenders can be given more than a year to pay, which shouldn’t be surprising or troubling because A LOT of offenders come from lower socioeconomic backgrounds or, in other words, are poor.

Ever wonder what happens when an offender doesn’t pay the fine? Well, believe it or not, they can be sent to jail. An offender can be sent to jail for default in payment if their non-payment is willful. This won’t really occur, though, if person cannot pay a fine for financial reasons.

So, what is the formula for determining how long someone will spend in prison for defaulting on payment? The formula is set out in section 734(5) of the Code. Put simply, it is the amount of the unpaid fine and any transport costs associated with putting the offender in prison divided by an 8 hour working day at the provincial minimum wage.

Consider this basic example: in B.C., a person earning minimum wage ($10.25/hour) would earn $82.00 a day, working 8 hours. If someone has an unpaid fine of $820.00 and it costs $0 to transport them, then that person would spend 10 days in prison. And before you think that people could spend years and years in prison for an unpaid fine, there are (reasonable) limits on the amount of time that someone can be jailed (section 734(5)(b)).

Also know that before someone can be sent to jail, they will be subject to other enforcement methods. For instance, there can be a refusal to issue provincial licences or permits. Also, the government can try to get a civil judgment (and then enforce it) against the offender, like a typical creditor.

In addition to the ‘typical fine’ (described above), courts can impose ‘victim fine surcharges’ (VFS) on (all) offenders (section 737). Parliament created the VFS in an attempt to direct money towards programs for victims of crime.

The amount of the VFS is set out in section 737(2), which states that the VFS is 15% of the fine that is imposed or, if no fine is imposed, $50.00 for a summary conviction offence and $100.00 for an indictable offence. A court can increase the VFS if the offender is able to pay it and the court deems it appropriate. On the flip side, the court can also waive the VFS if the offender is financially destitute.

Also, criminal courts can make an order that an offender compensate a victim for an ascertainable amount of money; this is referred to as ‘restitution’. This amount, unlike a fine, goes directly to the victim. This can include such things as payment for property loss or damage, medical costs or loss of work (that result from the offence), or moving costs (when a spouse/child must leave the offender’s home). The restitution award is just that: restitution for the victim. It is not used as a way to punish the offender.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on July 3, 2012: Pay fine or go to jail.