Articles, discussion or information pertaining to criminal defence | Eleanor Funk | Calgary Criminal Lawyer - Part 10
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I’ve Been Charged with a Criminal Offence. The Crown has offered me “Alternative Measures”. What does this mean?

The Criminal Code allows for a number of different options once a person is charged with a criminal offence. One of the best options, for an accused person, is the Alternative Measure Program, or AMP.

The Alternative Measures Program is a program that is authorized by the Prosecutors’ office and most often involves an accused person performing some community service hours (or sometimes making a financial donation and / or writing a letter of apology), at the completion of which the criminal charge(s) is completely withdrawn, resulting in absolutely no criminal record for the person charged with an offence.

Typically, the Crown Prosecutor will allow an accused person to enter into the Alternative Measures Program if: 1) the person is charged with fairly minor offences (e.g. shoplifting of small amounts; minor assault charges; possession of very small amounts of a drug) and 2) the person has no previous criminal convictions and has not previously participated in the Alternative Measures program.

The advantages for an accused person are many, with the outcome of there being no criminal convictions being the greatest benefit. If you’ve been charged with an offence, there is no guarantee the Crown Prosecutor will offer Alternative Measures as a possible resolution and you should always consider speaking with a Criminal Defence Lawyer before you make any final decisions.

If you have been charged with a criminal offence, you need the assistance of an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722 (Ext 108).

The stakes keep getting higher

Throughout this website, there are references to the recent changes to the laws in Canada that result in more jail sentences, and longer jail sentences. Here’s another example:

Under the new drug sentencing laws, some drug offences now have mandatory minimum jail sentences, when certain ‘aggravating factors’ are present. Under the old laws, if someone trafficked in a small amount of most drugs (or possessed small amounts of drugs for the purpose of trafficking), the penalty on conviction could range from probation to ‘house arrest’ to a relatively short jail sentence. Under the new sentencing laws, trafficking in small amounts of some drugs in or near schools, or other public places regularly frequented by people under 18 (whether or not young people are present at the time), now may carry a mandatory minimum jail sentence of 2 years, with the Prosecutor holding exclusive discretion to seek the minimum penalty, or not.

Now, more than ever, if you’ve been charged with a drug, or other criminal offence, you need an experienced Calgary criminal defence lawyer in your corner.

If you have been charged with a criminal offence, you need the assistance of an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722
(Ext 108).

Sometimes the stakes are higher than you think

In Canada, the most common criminal offences are found in the Criminal Code and the Controlled Drugs and Substances Act. For the most part, the penalties for those crimes are also contained in those two Acts. There are other Acts and Regulations, however that may provide for additional punishments.

For example, under the Criminal Code, it is an offence to ‘communicate for the purpose of prostitution’. Often, undercover female police officers will pose as prostitutes; when they speak with a potential ‘John’, the ‘John’ may be charged with a criminal offence. These charges are generally dealt with in court as fairly minor offences – often with the ‘John’ doing some form of community service work or making a charitable donation, after which the criminal charge is withdrawn, resulting in no criminal record for the ‘John’. Criminally, there is almost no consequence for the accused person.

In Alberta, under the Traffic Safety Act, when a person is charged with a prostitution-related offence, the police may seize and impound the accused person’s vehicle until the criminal charge is dealt with in Court; if the person is convicted of the offence, his vehicle may be forfeited to the Government. If the vehicle is eventually returned to its owner, the owner will be responsible for any storage / impound fees, easily running into the hundreds of dollars. It is easy to imagine the inconvenience and financial hardship that would flow from losing one’s vehicle following what, in criminal law, is a fairly minor incident.

If you have been charged with a criminal offence, you need the assistance of an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722
(Ext 108).

Why you need to ‘shop around’ when looking for a criminal defence lawyer

There is a bit of a disturbing trend happening in the world of criminal law. First, there is nothing in law that says a person charged with a criminal offence must hire a lawyer; any accused person is free to represent himself, if he chooses to do so. 

If an accused person chooses to hire someone to represent him, however, then there are some rules that come into play. For non-criminal matters, such as traffic or bylaw tickets, there are any number of ‘traffic ticket agents’ that can be hired to represent persons in defending against their tickets. These ‘ticket agents’ are often former or retired police officers and there is absolutely no difficulty in hiring these agents to assist with non-criminal matters, such as tickets.

For criminal matters, the law allows non-lawyers to represent persons charged with more minor offences, if the potential penalty is not more than 6 months’ jail. As non-lawyers, these agents presumably have not gone to law school and don’t have law degrees.

The ‘advantage’ to the client is these non-lawyer agents may charge lower fees than a lawyer would charge. 

The disadvantages to the client are of greater concern. First, since these agents are not lawyers, not only do they not have law degrees or any professional legal training or certification, but in Alberta, these non-lawyers are not governed by any of the Rules of the Law Society of Alberta. What this means is, if you hire a lawyer and that lawyer is somehow negligent in representing you, you may make a complaint to the Law Society and the Law Society may take disciplinary action against the lawyer – up to the extreme remedy of disbarring lawyers for negligent conduct. If you hire a non-lawyer agent, and this person is negligent in representing you, the Law Society of Alberta has no ability and no power to discipline non-lawyer agents for negligent conduct, leaving the client with potentially the only recourse of spending more money to sue the non-lawyer in civil court. 

Another concern is that some of these non-lawyer agents may not even tell the clients that the agent isn’t actually a lawyer. They may have websites and other forms of advertising that look like lawyers’ advertising. This may lead clients into believing they are hiring a criminal defence lawyer, when in fact they are hiring someone who isn’t a lawyer at all.  

The bottom line is this, when ‘shopping’ for someone to represent you in a criminal matter, ask yourself if the lower cost of a non-lawyer agent is worth the potential risks involved.  

If you have been charged with a criminal offence, you need the assistance of an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722
(Ext 108).

Is Canada moving towards longer, ‘American-style’ sentences?

SentencingThere have been a lot of changes to sentencing laws in Canada over the past several years. Parliament has made changes to the Criminal Code and the Controlled Drugs and Substances Act that, among other things, now include mandatory minimum jail sentences for persons convicted of many offences. Other changes include making fewer offences eligible for Conditional Sentences (CSO / ‘house arrest’).

Another significant change is with respect to sentences for persons convicted of murder. Since abolishing the death penalty, the maximum penalty for persons convicted of murder has been life imprisonment, with parole eligibility after 25 years. In 2011, Parliament made changes to the Criminal Code that now increase the period of parole ineligibility for persons convicted of multiple murders. Under the new sentencing laws, persons convicted of multiple murders may have to serve consecutive rather than concurrent sentences. For example, if a person is convicted of two charges of first degree murder, under the old law, the sentence would be life imprisonment, with parole eligibility after 25 years. Under the new law, the person may not be eligible for parole for up to 50 years (that is, 25 years for each of the 2 convictions).

The sentencing landscape in Canada is certainly changing, with a clear movement towards more jail sentences, and longer jail sentences. If you’ve been charged with any criminal or drug offence, the stakes are high, and getting higher, you need the assistance of an experienced criminal defence lawyer.

If you have been charged with a criminal offence, you need the assistance of an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722
(Ext 108) or email info@eleanorfunk.ca

If I am guilty of a crime, shouldn’t I just plead guilty?

GuiltyThere are a lot of reasons why someone who may be guilty of a crime can, and should, be found ‘not guilty’ at trial.

The first and arguably most important reason lies in two fundamental truths of criminal law. First, everyone is presumed innocent. Regardless of what we know, or think we know, about someone’s guilt, in the eyes of the law, he is innocent.

Second, no one can be convicted of a criminal offence unless the Prosecution proves his guilt beyond a reasonable doubt. This is a very high standard. It is not enough for judges, or juries, to believe the person is probably guilty, or is more than likely guilty. Unless the judge, or jury, is convinced of the person’s guilt beyond a reasonable doubt, the person must be found not guilty. What’s more, if two or more people are charged with the same crime, and if at the end of the trial the judge, or jury, knows without a doubt that one of them committed the crime, but cannot determine which person did it, then all of the accused must be found not guilty, and acquitted, because the evidence did not prove any one person’s guilt beyond a reasonable doubt.

The bottom line is this, if you’ve been charged with a criminal offence, the legal maze is too complex and too complicated to navigate alone.

If you have been charged with a criminal offence, you need the assistance of an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722
(Ext 108) or email info@eleanorfunk.ca

Marihuana Legalization and Decriminalization

What is the difference between ‘legalization’ of marihuana and ‘decriminalization’ of marihuana?

For starters, it is a criminal offence in Canada to possess even small amounts of Cannabis Marihuana. While some police officers may choose to ignore, or not arrest, persons found with small amounts of marihuana, if you have been charged with even simple possession of marihuana, you are facing a criminal charge, the consequence, if convicted, is a criminal record that could have a serious negative impact on your work, education, or travel opportunities.

Over the past several years in Canada, there has been considerable debate, in politics, the media and elsewhere over ‘legalization’ or ‘decriminalization’ of marihuana. These 2 terms do not mean the same thing.

‘Decriminalization’ of marihuana would mean that possession of small amounts of marihuana would no longer be a criminal offence, but could allow the police to issue a ticket for marihuana possession (similar to an ‘open liquor’ ticket) – the consequence would be the person receiving the ticket might have to pay a fine, but there would not be a ‘criminal record’ or criminal conviction. Presumably under this type of system, paying a fine for possessing marihuana would not carry the same kinds of work, educational, or travel consequences that flow from a criminal conviction.

If possession of small amounts of marihuana were ‘legalized’, there would no longer be any criminal consequences or tickets that could be issued to persons found in possession of small amounts of marihuana. If ‘legalized’, possession of marihuana might be treated no differently, in law, than possession of alcohol or tobacco.

Whether or not any of these changes happen in Canada is entirely up to Parliament, and as stated at the beginning of this article, possession of marihuana remains a criminal offence, potentially with serious consequences, if convicted.

If you have been charged with a drug offence, you should talk to an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722 (Ext 108) or email info@eleanorfunk.ca

Can I lose my property even if I haven’t been charged or convicted of a criminal offence?

ForfeitureYes, you can. In Alberta, and many other Canadian provinces, the provincial government is aggressively pursuing forfeiture of property (homes; vehicles; money) even when the property owners have not been charged with any type of criminal or drug offences, or where the property owners have been charged with offences but have not yet been convicted, or acquitted, of any crimes. The law that allows the government to do this is called the Victims Restitution and Compensation Payment Act.

If the police believe that a person has been involved in illegal acts and has, for example, acquired money as a result of those acts, that money may be seized by the police and forfeited to the Government, without any criminal charges being laid. Or, if the police believe that a person has, for example, used his car for drug trafficking, or has used his home for a marihuana ‘grow operation’, then the Government can try to take away the car or house, without any criminal charges or findings of guilt in a criminal court. Similarly, a property owner who loans his car, for example, to someone who then uses the car to traffic drugs could potentially lose his car in this ‘civil forfeiture’ procedure; or a property owner who rents a home to someone who in turn uses the home for a marihuana ‘grow operation’ could lose his equity in the home.

The practical reality for property owners is their money or vehicles may be seized by the police and held for months before any Court applications are heard; or their homes may be under a Restraint Order, which prohibits the property owners from selling the property, until the Government makes its application in Court for forfeiture of the property. If the police have also laid criminal charges, then property owners are faced with dealing with criminal charges in criminal court and also dealing with the ‘civil forfeiture’ proceedings in civil court – the consequences could potentially mean going to jail, if convicted of the criminal offences, and losing your home or car or money, if the Government succeeds in the ‘civil forfeiture’ proceedings. The result, for property owners, is stressful, time consuming, and expensive.

If your property has been seized as part of this ‘civil forfeiture’ process, then you need the assistance and guidance of an experienced lawyer; someone who knows this area of law and who is prepared to fight for you, and fight for your property. As a Calgary criminal defence lawyer, Eleanor Funk has successfully fought for the return of clients’ property numerous times.\

If you have been charged with a criminal offence, you need the assistance of an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722
(Ext 108) or email info@eleanorfunk.ca

The police want to talk to me – do I have to talk to them?

The short answer is no. I always tell my clients they are under no legal obligation to help the police with an investigation. What this means is, you will not get into any legal trouble if you do not talk to the police. Despite what you may have seen on TV or in the movies, it is not a crime to refuse to talk to the police.

Having said that, if the police want to talk to you, you have likely come to their attention for some reason; maybe you are a suspect in a criminal investigation, or maybe the police believe you have witnessed a crime or have information about some criminal activity. Whatever their reasons, if the police want to talk to you, they are most likely not going to tell you the whole story about what information they already have and what information they are looking for from you.

If the police want to talk to you, do not simply ignore their requests. This is the time to seek the advice of an experienced criminal defence lawyer. If the police decide to charge you with an offence, you will need a defence lawyer to represent you with bail hearings and other court appearances. Even if the police do not charge you with a crime, a criminal defence lawyer will be able to explain to you the process and risks involved, so that you can make an informed decision about talking to the police, or not. The choice is yours and yours alone; do not make that decision without first speaking with an experienced criminal defence lawyer.

Every situation comes with its own set of facts and legal issues. This article is not intended to be a substitute for legal advice from a criminal defence lawyer.

Call Eleanor Funk to discuss your concerns in more detail at 403.262.7722 (Ext 108) or email info@eleanorfunk.ca

Blog Posts

Welcome to Eleanor J. Funk’s blog section of the site.

Ms. Funk is available to discuss your case. Call 403-262-7722 (ext 108) to arrange an appointment.

 

 

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