Expertise

MAKING THE DIFFERENCE BETWEEN BAIL AND JAIL

The Supreme Court of Canada describes ours as “a liberal and enlightened system of pre-trial release under which an accused must normally be granted bail”. In principle, most accused can and should be released on bail. In practice, having an experienced lawyer in bail court can make the difference between bail and jail. For many years after the enlightened quote above from the Supreme Court of Canada, many still described the bail system in Canada as “broken”. 2017 was a good year for the law of bail with the release of R. v. Antic in which the Supreme Court forcefully identified how the bail system should have been (but was not) working for years. But the resistance to those principles in certain quarters of the justice system remains palpable. Vigilance and diligence in bail court remain essential. Counsel with expertise and experience is the key.

Graham T. Clark’s criminal law office works with the client, family and other supporters to create a Release Plan that will satisfy the Court’s bail concerns to ensure the accused’s release with the least restrictive conditions possible.

In some cases, Mr. Clark can arrange for the client to surrender and be released directly from the police station on the same day by Promise to Appear/Undertaking, with no risk of being denied bail.

GETTING OUT, THE FIRST STEP TO STAYING OUT

Accused persons who do not get released on bail are more likely to plead guilty, and more likely to be convicted even if they plead not guilty. Mr. Clark is passionate about securing his clients’ release on bail and working closely with any of the client’s family or friends who are able to act as a Surety to ensure the proper result. Getting out of jail is the first step in staying out of jail.

Despite the vindication of the “ladder principle” in R. v. Antic, Release Plans will often still require a person to act as Surety for the accused, to ensure that the accused attends court and follows the release conditions imposed. The Plan must also address questions such as where the accused will reside, work and/or attend school while the charge is outstanding. The Plan will fit realistically within the client’s and the sureties’ living and working arrangements. Bail conditions are crafted in advance in order to create a viable proposal that the Court will see as striking the balance between legitimate release conditions and those that might unduly restrict the liberty of the accused or unnecessarily invite breaches of the conditions.

Bail conditions will usually include having no contact with complainants, witnesses and co-accused, as well as advising authorities of any changes of address or employment. In more serious matters the accused might be required to abide by a curfew, report regularly at a police station or obey other conditions arising from the particular circumstances. Bail conditions must of course have a purpose rationally connected to the case. For example, an offence allegedly committed in broad daylight need not automatically lead to a night-time curfew condition. As well, a drug trafficking charge should not automatically lead to a “no cell phone” condition.

SUCCESS IN YOUR CRIMINAL DEFENCE CASE

An experienced criminal defence lawyer ensures that clients gain a true sense of confidence about how the system works, what can be done, and what will happen in court. The lawyer’s role is to give the client a practical grasp of the situation so that the client can instruct the lawyer with confidence. The lawyer’s job is to give the client a voice where the client would otherwise be ill-equipped to express and defend themselves. In that sense, it is no insult to call a lawyer a “mouthpiece”, as funny as it may sound.

What must your lawyer do to get your case to trial? The process that moves a case from charge to trial is reflected in the following list of tasks and services usually required, at a minimum, in the Ontario criminal courts:

  • Attend remand/administrative court appearances;
  • Obtain and review police/crown disclosure materials;
  • Request, obtain and review further/other disclosure materials arising from initial disclosure review;
  • Analysis and advice to, and receive instructions from client with respect to known disclosure, witnesses, evidence, etc., and all aspects of the defence as may affect plea, pre-trial and trial motions/applications, trial and/or sentencing issues;
  • Conduct pre-trial discussions with Crown prosecutor as per court protocols/practice directions for date setting, and related preparation;
  • Seek and secure such bail variations on consent as reasonably warranted;
  • Take final instructions with respect to disclosure/evidence, pre-trial and trial motions/applications, plea to be tendered;
  • Legal research with respect to specific issues, preparation of submissions;
  • Conduct witness interviews, prepare examinations of witnesses;
  • Conduct Judicial Pre-trial conferences [“JPT”] as per court protocols/practice direction for date setting, and related preparation;
  • Draft, serve and file pre-trial and trial motions/applications;
  • Secure hearing date for pre-trial motions/applications, if any, in coordination with Crown and Court schedules;
  • Secure hearing date(s) for trial in coordination with Crown and Court schedules;
  • Prepare client and other defence witnesses, if any, for testimony;
  • Attendance at Court for conduct of Preliminary Inquiry and/or Trial;
  • Attendance at Court for sentencing proceedings, if any.

Given the broad range of cases Graham T. Clark has handled in the Ontario criminal courts over the years, chances are that he has defended whatever charge you are facing. That said, the particular name of the offence or the charging statute sometimes has surprisingly little to do with the defence. The facts and evidence are what matters. Some murder cases can be less complicated than some impaired driving cases, even though the stakes are so very different. The defence in some cases might be based entirely on the Charter of Rights and Freedoms or eyewitness identification problems or intoxication issues or other myriad factors unaffected by the particular name of the charge or section number of the Criminal Code or Controlled Drugs and Substances Act under which the charge was laid.

The criminal law office of Graham T. Clark enjoys decades of pure criminal law experience and expertise. Through direct personal service we work closely with our clients to identify goals and navigate each step in the criminal process to maximize the prospect of a positive outcome.

 

YOUR PLEA

The phrase “My Clients Plead Not Guilty” was coined well before lawyers had websites. It is more than a slogan. It is default advice rooted in the fundamental principle that in a criminal case the Crown bears the burden of proof at all times – proof beyond a reasonable doubt.

Graham T. Clark strives in every case to ensure that clients’ instructions are given with complete confidence based on that the client’s best interests are being served. Even for those who wish to plead guilty, there are always options that can be tailored to the client’s advantage, from reduced penalties and agreements to have charges withdrawn (paerhaps even those against a co-accused), to the return of seized property, to favourable terms of probation and countless other examples.

More often than you might think, an accused who wishes to plead guilty should NOT be pleading guilty. Nobody ‘must’ plead guilty, just like nobody ‘must’ give a statement to police or consent to a search. Even if you feel guilty, or think you are guilty of something, you may be legally guilty of nothing at all. Even if you are guilty, can the Crown prove it? If not, why plead guilty?! To answer these questions, you want the advice of an experienced criminal lawyer dedicated completely and exclusively to your interests.

 

PREPARATION

An experienced criminal defence lawyer expects and ensures that clients gain a true sense of confidence about how the system works, what can be done, what will happen in court and what the likely outcome will be. Court appearances need not bring stress, and the courtroom need not seem mysterious. Court is just the building where we follow through on the preparation work that usually begins in a phone call and continues throughout the case. Preparation gives purpose to the appearances and control over outcomes.

A particularly important decision that comes up in every case is whether the accused should testify in his or her own defence. Legally the accused has no obligation to step into the witness box. But in some situations, testifying is a good or necessary tactical decision. An accused can testify on the trial itself but also, for example, on a motion to exclude evidence under the Charter, or to create the foundation for a motion to get past the ever-expanding “rape-shield” rules which prevent full cross-examination of complainants in sexual assault matters. Some cases ‘call for an answer’ – an answer that only the accused can provide.

At trial, once the Crown has closed its case, the accused is called upon to make the final decision about whether to testify. At that moment, the accused’s ability to take the witness stand – and win the case that way – is the product of the pre-trial preparation work done between counsel and client. One of counsel’s most important duties is to ensure the client is properly prepared to testify if necessary.

In other cases, of course, exercising and maintaining the right to silence is the best strategic option. Indeed in some cases counsel really can take care of every last thing and the client is advised to ‘just sit back and watch and enjoy’.

Mr. Clark is always both sword and shield for the client’s right to life, liberty and security of the person.

 

GUILTY PLEAS

Where the accused does choose to plead guilty, the law requires that the plea meet a minimum standard of awareness, as with any waiver of a fundamental legal right. The law requires that a plea of “guilty” be voluntary, unequivocal and informed. A plea that does not meet these standards would be struck by an appeal court.

Graham T. Clark does more than simply ensure that your instructions about how you wish to plead are voluntary, unequivocal and informed. Counsel’s goal is to make sure that instructions are given with complete confidence that only the client’s best interests are being served, and served in accordance with what really matters to the client – there are always options and they can be tailored to the client’s advantage, from agreements to have charges against a co-accused withdrawn, to the return of seized property, to the terms of a probation order and countless other examples.

Even on a plea of “guilty” there can still be a ‘trial of an issue’ to determine and mitigate the precise facts affecting penalty. And there can also be evidence called to demonstrate prospects for rehabilitation, credit for pre-trial custody or other matters germane to sentencing, examples of all of which can be found among Mr. Clark’s reported cases.

DRIVING OFFENCES

If you are convicted of driving while Impaired, ‘Over 80’, or Refusing Breath Sample, the Judge has no choice but to impose minimum penalties, including a mandatory license suspension. When your license is later reinstated, your insurance rates go off the dial. Your only chance to completely avoid that is to go to trial with an experienced criminal lawyer.

The government has fine-tuned the Criminal Code to make it easier for police and the Crown to investigate and prosecute these cases. That now also applies to impairment by drugs other than alcohol, especially with the decriminalization of cannabis. At the same time, for criminal lawyers it is now “open season” on an entire array of new Criminal Code amendments and new enforcement provisions. The Charter of Rights and Freedoms remains the supreme law of the land, and technical defenses change over time but they never go away.

Unless you have reason to think the government’s “interlock” program is right for you, there is very little incentive for anyone to “plea bargain” on a driving case. The penalties are mandatory and can’t be bargained away. An experienced trial lawyer like Graham T. Clark is what you need to fight and win.

 

“ZERO TOLERANCE”

‘Zero-tolerance’ became the touchstone of Domestic Violence enforcement many years ago, and it now seems to be so with alleged sex crimes. ‘Zero-tolerance’ does not comprehend the presumption of innocence. It prevents police and crowns from exercising discretion to weed out bad cases. Most people charged with sexual assault are disappointed to find out that police do not usually investigate. More and more, they simply take a complaint, make an arrest, and let the justice system sort everything out. The complaint is the case.

‘Zero-tolerance’ in many cases actually hurts families. In Domestic Violence cases, a neighbour calls police because of some yelling, next thing you know bail conditions prevent parents from talking to each other about their own kids. Family income is devastated by the need to rent a second residence and the police and crown seem hostile to alleged victims who beg hopelessly for a right to have some say in the prosecution that has taken over their lives at someone else’s request. Real domestic violence and real cases of sexual assault are a serious problem. But criminal justice can be a brutal cure sometimes worse than the disease.

After being called to the Bar in 1998, Mr. Clark started working as a junior defence lawyer on for one of the accused in the so-called “Maple Leaf Gardens Sex Scandal”. During that formative experience Mr. Clark was fortunate to work with some of the best senior criminal defence lawyers anywhere.

Mr. Clark has never stopped working on the defence of sex crime cases. He has for years closely followed the development of the massive array of laws and special rules of evidence meant to protect sex crime complainants. The tide of legislation and jurisprudence against accused people in favour of complainants has been steady for many years now – shielding complainants from cross-examination, preventing accused people from testifying about their truth, and sometimes doubling or tripling the amount of a lawyer’s time required to defend an otherwise simple one-witness case.

The courts and the government have not deliberately set out to make it uniquely difficult and disproportionately time-consuming to defend against sexual assault cases. But that is what has happened in Canada.

Mr. Clark has not been sitting back watching sex crime law devolve. He has been right in the ring with sleeves rolled up, fighting for real people with everything at stake. Academics and “victims rights” personnel can endlessly cite unproven statistics about the number of unreported sex crimes and act on the assumption that an entire class of complainants would “never lie”. And the Supreme Court of Canada released some decisions in 2019 that will have made that lobby happy – for now. In one 2019 case, for example[2], a man accused of impregnating a complainant was not permitted to question the complainant about whether she had sex with anyone else around the relevant time. This is viewed by many as a shocking degradation of the what the court has previously referred to as one of the ultimate truth seeking tools: cross-examination.

Meanwhile, a case in 2011 made the substantive law of consent in Canada something that many or most people might find shocking because it inevitably categorizes some natural every day human contact as sex crime. If you think that is a melodramatic defence lawyer’s over-statement, read the words of the Honourable Mr. Justice Fish, one of three dissenting judges in that opinion, who said:

74             Adopting the Crown’s position would also require us to find that cohabiting partners across Canada, including spouses, commit a sexual assault when either one of them, even with express prior consent, kisses or caresses the other while the latter is asleep. The absurdity of this consequence makes plain that it is the product of an unintended and unacceptable extension of the Criminal Code provisions upon which the Crown would cause this appeal to rest.

The majority of the Supreme Court of Canada did adopt the Crown’s position. Canadians now have no legal right to consent to being awakened by their spouses touching them sexually. Its impossible to calculate just how many Canadians are technically unregistered sex offenders.

It has never been more impossible for an accused person to defend themselves on sex crime accusations. And it has never been easier for a false complaint to be not only accepted but actively nurtured and advanced as truth by police and the Crown alike. If ever there was a need to have an experienced lawyer fully retained for the fight of your life, it is now.

SEARCH AND SEIZURE

If you have been searched or had property seized by police or other state agents, you may have been the victim of illegal conduct. It may be that a Judge will not allow the Crown to use that evidence against you. Sections 8, 9, 10 and 24 of the Charter of Rights and Freedoms may provide you with a complete defence.

If you have been searched or had property seized by state agents who acted without a search warrant, it is the Crown’s burden to justify the action. Unwarranted searches are presumptively unreasonable.

But even if you had property seized by state agents who acted with a search warrant, was it properly and legally granted?

You might be surprised and should be appalled to know that an Ontario study in 2000 by a panel of blue-ribbon criminal law experts [including 2 judges] found that 61% of a random sample of search warrants pulled from court files should not have been granted. In 43% of the cases there was more than one substantive defect. The study was called “Search Warrants: Protection or Illusion?”.

Obviously, there is some illusion in suggesting that you are protected by the obligation upon police to get “prior judicial authorization” (a search warrant) before rummaging through your most private locations. It is not uncommon for police to be granted warrants even where they shouldn’t be. But protection is still available after-the-fact if you are charged with a crime and hire an experienced criminal defence lawyer.

The law office of Graham T. Clark has been challenging the lawfulness of police actions for decades. If it can be done, this office will do it for you.

 

Let the expert handle it.

Call GTC Law
705 499 7644

 

Call GTC Law
705 499 7644

 

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1 416 981 7780

 

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