Experienced Criminal Lawyers

What Should Happen When the Worst Happens

No lawyer who fights for his or her client at a trial wants to hear the word “guilty.” The team at Ross Lutz Barristers and Alberta Legal don’t take frivolous cases to court. After the trial date is set, our criminal lawyers Calgary strategically build a defence. Successful defences are comprised of three “walls.” While we don’t use bricks and mortar but the concept is the same. We build the defence first by tearing apart as much of the prosecution case as we can be based on the disclosure that is provided and by the information our client gives us. That is the first part of the wall we build. This alone can create doubt. Doubt is all that is needed in order to be successful at trial. However, we do not stop there. The next part of the wall is the defence case. In some instances, this may be the client who is prepared to testify. It may be other defence witnesses. It may be an expert witness. Each witness we call as defence witnesses will provide a key piece of evidence that is strategically designed to support the overall defence argument. The final part of the wall is the argument. We take key and central pieces of evidence given by all parties to support the main defence argument. A well-designed defence gives the Court or Jury a reasoned explanation logically related to the evidence that supports doubt.

However, the harsh reality is those guilty findings can and do happen. What should your lawyer do when the worst happens? The answer is that your lawyer still has to fight on your behalf. We don’t roll over just because you were found guilty. We start to build arguments about the penalty and sentence. We fight to keep you out of custody so that we can adequately prepare for a sentence. Section 523 of the Criminal Code sets out the provisions for when bail continues post-conviction.  Specifically, it states:

523 (1) If an accused, in respect of an offence with which they are charged, has not been taken into custody or has been released from custody under any provision of this Part, the appearance notice, summons, undertaking or release order issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, summons, undertaking or release order was issued, given or entered into,

(a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3) [release of accused on s. 469 offences], until his trial is completed; or

(b) in any other case,

(i) until his trial is completed, and

(ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 [Pt. XXI — appeals — definitions] is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence.

The Alberta Court of Appeal has held in R v Aheer, 2020 ABCA 232 has decided that section 523(1)(b)(ii) is the proper section that applies post-conviction but pre-sentencing decision. Furthermore, the Court has found that the party seeking to revoke bail has no burden or test that must be met. The Court wrote in paragraph 16:

The language in s 523(1)(b)(ii) contemplates that bail will continue after conviction and prior to sentencing unless the judge orders otherwise. Section 523(2) opens with the phrase “Despite subsections (1) to (1.2)…”. This language suggests that section 523(1)(b)(ii) provides an exception to the rules in s 523(2) that would otherwise apply. In other words, s 523(2) allows bail to be vacated on cause being shown in the circumstances set out in ss 523(2)(a), (b) and (c). The very specific language in s 523(1)(b)(ii), which continues bail “unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence”, would be redundant if resort were needed to s 523(2) for jurisdiction to revoke bail after conviction and prior to sentencing.

This means it is up to the judge and the judge alone to decide whether bail post-conviction but a pre-sentencing decision will continue or not. Your lawyer (if instructed) will argue that bail post-conviction should continue and give the judge reasons why it should continue.

Your lawyer will continue to prepare for and fight for you at the sentencing hearing. In some cases, we argue for a conditional discharge and in other cases, we fight about the length of the jail sentence. Make no mistake, your lawyer will still fight for you.

It is understandable to be upset if the worst happens and a guilty finding is made. However, it is also important to separate normal human emotions and recognize that your lawyer is still fighting for you.

Your lawyer may have a number of options to argue for a penalty. They range from a discharge (which will result in no criminal record) to a fine to imprisonment.

What is a Discharge?

You may be granted an absolute discharge or a conditional discharge by the sentencing Judge. A discharge will not result in a criminal conviction. However, the criminal charge will show as pending while the discharge is in process. This is because a discharge is a legal 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 the court order or maybe absolute with no conditions. Once conditions are satisfied and the probationary period ends, the discharge becomes absolute.

What Are the Other Options Outside of Imprisonment?

A suspended sentence, fine, or probation are other sentencing options. An order for restitution to be paid to a victim may accompany a probation order. 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 the sentence and the individual charged is generally placed on probation for a period of up to three years. There are typically various conditions attached to the probation order 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 counselling as directed. Conditions attached to a probation order can be rehabilitative in purpose or punitive in purpose or both.

If the Court orders a fine, you will be given a certain period of time to pay the fine, or in default, there may be a term that the individual serves a number of days in jail. A restitution order is similar, but the amount is payable to some person or entity.

What About a Custodial Sentence but Served Under House Arrest?

In some cases, your lawyer may be able to argue that while a custodial sentence should be imposed but it is of the length that will allow for house arrest to be an option, your lawyer may argue for a Conditional Sentence Order (CSO). The Court must conclude that in your particular case the sentence is in the reformatory range (less than two years), that there is no applicable mandatory minimum and the maximum is less than 14 years – if these factors apply then 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 there is a negative history in relation to court orders, probation or bail, or if you have a  significant recidivist criminal history, it is unlikely that a conditional sentence will be ordered.

In this circumstance, you will be confined to your 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 the progress similar to a probation officer. If you are alleged to have contravened a condition of their conditional sentence, a warrant is issued for your arrest, and you will be held for a conditional sentence breach hearing. At this stage, the remainder of the sentence may be commuted to a custodial sentence, and some other penalty may also be imposed.

What Happens When Imprisonment is Ordered?

In the most serious of circumstances, a person convicted may have to serve a period of imprisonment. A person who receives a custodial sentence of two years or more is placed in the federal penitentiary. In this case, the Federal Parole Board will have jurisdiction when it comes to parole and parole issues. If the sentence is two years less than one day, then the person will serve in a Provincial institution and in Alberta, the Alberta Parole Board will have jurisdiction for parole-related issues.

No one including your lawyer wants to hear the word guilty. However, no lawyer can promise or deliver any certainty or control once the trial has started. It is important to understand that the lawyers at Ross Lutz and Alberta Legal fight to the ends of the earth for you. We fight even when the worst happens. It is critical to retain a good working relationship with your lawyer and let them continue the battle to the bitter end for you.

The final step is setting you with the proper appeal. Lawyers must be smart and strategic during the trial to set any potential appellate lawyer up for the best chance at success if the worst happens. This means we must object at the proper times. It means we have to fight strategically when it comes to admitting evidence and opposing the admission of evidence.

It is critical that you have experienced Calgary criminal lawyers at the Ross Lutz Barristers who will review the facts of your case and explain your legal options. Our results are based upon our personal attention to each case. Contact our team for immediate assistance and legal guidance you deserve.