Articles, discussion or information pertaining to criminal defence | Eleanor Funk | Calgary Criminal Lawyer - Part 10

When someone gets up in your face, just walk away

We all know that arguments happen. Very quickly a verbal dispute can turn physical. Under the Criminal Code, any form of non-consensual touching is a criminal ‘assault’.

It’s easy to imagine a situation where two people are engaged in a verbal argument, they both may be yelling at each other, swearing at each other, and ‘egging’ each other on. So far, there is nothing criminal about this behaviour. As soon as one person touches the other, even to push the other person out of his face, the actions become criminal and the person doing the pushing may be charged with assault, even though no punches have been thrown.

In a situation like this, where both people were equally involved in the verbal argument, only one person may be criminally charged if he chooses to end the argument by shoving the other person away. The moral of the story of this, no matter how much another person may be ‘up in your face’, to avoid the risk of being criminally charged by pushing that person away, just walk away.

If you’ve been charged with a criminal offence, you should speak with an experienced Criminal Defence Lawyer to discuss all of your options. Call Eleanor Funk today at 403.262.7722 (ext 108) or email at info@eleanorfunk.ca.

Prostitution laws in Canada struck down – what does this mean?

On December 20, 2013, in a land-mark decision, the Supreme Court of Canada ruled some of the laws against prostitution are unconstitutional and violate a person’s right to ‘life, liberty and security of the person’. What does this mean?

As a starting point, the exchange of sex-for-money is not a criminal offence in Canada. Instead, ‘keeping a common bawdy house’ (i.e. brothels, certain “massage parlours”, and other places where people go to specifically engage in prostitution-related activities) is a criminal offence. ‘Living off the avails’ of prostitution is also a criminal offence. We often think of people who ‘live off the avails of prostitution’ as pimps, but may also include receptionists, body guards, drivers or other security personnel employed in prostitution- related businesses. Also, ‘communication for the purpose of prostitution’ in a public place is a criminal offence – this means the communication between a “john” and prostitute on the street, or other public place, is a criminal offence.

There is no argument that prostitution can be a dangerous business. Many have argued over the years the current criminal laws make it impossible for people involved in prostitution-related activities to do so in a safe way, when it’s a criminal offence to have brothels or to employ drivers or security personnel, etc.

In the decision of R. v. Bedford, the Supreme Court of Canada agreed these current laws may act to increase the inherent dangers of prostitution and found these laws to be invalid. Rather than striking down these laws right away, the Supreme Court has given the Parliament of Canada one year to respond to this decision and effectively ‘re-write’ the prostitution laws. The Court acknowledged Parliament may still impose limits on where and how prostitution is conducted and gave Parliament one year to devise a new approach.

For now, the current prostitution laws are still in place, but the legal landscape is changing fast and within a year, Canadians may have a whole new set of prostitution-related law.

If you’ve been charged with a criminal offence, you should speak with an experienced Criminal Defence Lawyer to discuss all of your options. Call Eleanor Funk today at 403.262.7722 (ext 108) or email at info@eleanorfunk.ca.

“Cruel and Unusual Punishment” – how some courts are responding to mandatory minimum jail sentences

Over the past several years, Parliament has made a number of changes to the Criminal Code and Controlled Drugs and Substances Act. The result of these changes have 1) created mandatory minimum jail sentences for some crimes; and 2) increased existing mandatory minimum jail sentences for some crimes.

For example, any person convicted of ‘discharging a firearm into or at a place, knowing that another person is present at that place’ would face a mandatory minimum jail sentence of at least 4 years. As another example, any person convicted of ‘possessing a loaded prohibited or restricted firearm’ would face a mandatory minimum jail sentence of at least 1 year, and possibly 3 or 5 years as minimum sentences.

The Canadian Charter of Rights and Freedoms protects everyone from being subjected to ‘cruel and unusual punishment’.

In certain circumstances, judges will ‘strike down’ minimum jail sentences if they find such sentences amount to ‘cruel and unusual punishment’. What this means, is sometimes judges will find these mandatory minimum jail sentences are, in fact, not valid laws and should not apply.

Recently, in Manitoba, the court found the 4-year minimum for ‘discharging a firearm into a place knowing a person was present’, was cruel and unusual punishment. Also, recently in Ontario, the court found the 3-year minimum penalty for ‘possessing a loaded prohibited or restricted firearm’ was cruel and unusual.

So what does this mean in Alberta? For now, the minimum penalties are still the law. With these cases from Manitoba and Ontario, likely in the next couple of years the Supreme Court of Canada will decide if these minimum penalties are valid, or not.

The bottom line is this, if you’ve been charged with a criminal offence, you should speak with an experienced Criminal Defence Lawyer to discuss all of your options. Call Eleanor Funk today at 403.262.7722 (ext 108) or email at info@eleanorfunk.ca.

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