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Author:Jacqueline Halliburn

self-representation-court

Why You Should Never Represent Yourself in Court

A lot of clients come to us after several weeks or months of trying to represent themselves. But the courts and the Crown know the importance of everyone being represented and urge people to retain counsel, usually until they do. In many cases, it is understandable that a person would want to save the cost of hiring a lawyer. Perhaps you don’t qualify for legal aid because you earn a substantial income or you are not facing jail. Perhaps you see the charges you are facing as not very serious. But most of all, you trust the process; you know the Crown is supposed to be fair and the Judge, impartial. No one is yelling or banging their fists on the tables in our courts like they are on TV, and every time you have stood in court yourself, the whole thing seems to exude decorum and professionalism. So, you trust that you don’t need a criminal defence lawyer in order to be treated fairly.

In many cases, your assumption would be true. You may not get the same results without counsel, but usually you won’t get railroaded. However, it does happen. This is why, under no circumstances, should one ever represent himself.

It is disappointing and frankly shocking that in 2018 in Canada, you could be subject to absolute injustice by the criminal justice system itself. But it happens, and it may happen so subtly, you don’t even realize it. This is why it is imperative that you have good counsel at your side, no matter how minor you think your charges may be.

I recently represented a client in Kelowna for a serious matter. The client was not interested in a fight; she was only interested in taking responsibility, pleading guilty, and accepting whatever sentence the Judge saw fit to impose. My only job was to make sure the Court had all the important information about my client and appreciated all of the positive steps my client had taken. It became abundantly clear as the sentencing proceeded that this would be no easy task.

Right from the start, the Judge engaged in behaviors and facial expressions which conveyed to us that she had already made up her mind without having all the information. It was not subtle, and the stakes were very high. If my client were self-represented, she likely would have told herself that she was simply unlucky and that she would have to accept the cards she was dealt, namely, this Judge as the sentencing Judge.

Luckily for my client, I knew better. My client, like any and every accused, has certain rights and I will insist upon those rights from before a charge is laid until sentence is pronounced. Not only am I talking about Charter Rights such as the right to make full answer and defence, the right to silence, and the right not to be arbitrarily detained, for example, but also certain rights that are so basic and fundamental, you won’t find them in any Code or legislation. We don’t often have to articulate these rights because they’re taken for granted… until they are being denied. These are the Principles of Natural Justice.

You have a right to be heard. You have a right to reply to the Crown. You have a right to a full and thorough hearing (whether a trial or sentencing) which is not only in fact fair, but also appears to be fair. And you have a right to all of these things in a meaningful way, not just on the surface. When I realized almost every one of these principles was being violated for my client in Kelowna, I put a stop to the hearing immediately. I moved for the Judge to remove herself from the case, and had the matter rescheduled. In the week that followed, I conducted extensive case law research on the Principles of Natural Justice, filed a detailed written application outlining the apprehension of bias that permeated the hearing, and demanded an oral hearing and right to reply to Crown on the matter. In the end, we were able to take control of the situation.

If someone in my client’s situation were self-represented and had proceeded without counsel, almost certainly, they would have received an unfair sentence. Because even if the sentence had been within the range, it would have been higher than it otherwise would have been because of obvious preconceptions by the Judge. This would have made it nearly impossible to appeal for two reasons, first, because facial expressions and non verbal behaviors will not appear on a transcript of the proceedings, and second, because a self-represented person would not have raised it as a concern at the hearing, making the question on appeal- well why didn’t you say something at the time?

These situations don’t arise often. But they do arise. When they do, the situation is often dynamic, urgent, and delicate. If you don’t have experienced counsel to protect you, what should have been a simple, non serious matter can quickly turn into a high stakes fight for your future. This is why under no circumstances should one ever represent himself. If you have a case you need assistance with please don’t hesitate to contact us.

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drug-addiction

The Addiction Epidemic Fuels Crime

If you live in the lower mainland, you are well aware of the addiction epidemic that is plaguing our communities. You cannot turn on the news, or social media, or even walk downtown without being reminded that we are facing what is being called the Opioid Crisis.

It goes without saying that drug addiction doesn’t only affect the addict, but their entire family and everyone who cares about them as well. In fact, if you live in Vancouver, chances are you have a friend, co-worker, or family member struggling with the disease of addiction. This blog is written for you.

The link between drug abuse and crime is undeniable. Addiction is a progressive, incurable, and fatal disease, and an addict can only progress so far before he or she becomes unemployable, and has to resort to other means to support his or her habit. Whether he or she is addicted to crack cocaine, crystal methamphetamine, heroin, fentanyl, or even alcohol, their habit is never a cheap one; opiate users for example, often spend several hundred dollars a day on their drug of choice. Therefore, crime often becomes the only viable way to fund a drug habit.

If you have a friend or family member who is charged with an offence because of something their addiction drove them to do, it is very important you help them find an experienced lawyer who understands and can help them navigate the criminal justice system. We have helped many clients and their families deal with criminal charges that stemmed from either impaired judgment as a result of drug use, or a need to support a drug habit. These types of offences can range anywhere from shoplifting to prostitution to violent robberies, and everything in between.

We have extensive experience helping still-suffering addicts and their families deal with all types of allegations whether small property crime or serious violent crime. The accused person will need experienced counsel to help in assessing the strength of the Crown’s case against them, negotiating a fair resolution which takes into account their reduced moral culpability as a result of their disease, or conducting a trial. Their counsel will need to be experienced in making submissions to the court regarding how addiction effects a person’s ability to appreciate consequences and control their impulses. Often, we will also assist in getting our clients into treatment centres or recovery houses as a way of resolving their criminal matters in a more constructive and restorative way.

Our approach to assisting addicted clients and their families is to focus on the connection between their disease and their criminal behavior. They have not done what they have done because they are bad; it is because they are sick. We want to help get their lives on track while minimizing the impact and consequences of their criminal charges on their future.

If you or a friend or family member is in this type of situation, we can help. For any questions, please call our criminal law firm and one of our experienced lawyers will be happy to assist.

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Court of Appeal

Appealing a Sentence in British Columbia – What does it Mean?

Were you convicted when you were found guilty of a crime?

Did you receive a sentence after being found guilty or pleading guilty to committing a crime?

Was the decision unreasonable? Can it be supported by the evidence? Did the lower court judge make an error in law? Was there a miscarriage of justice?

Was your sentence imposed within the past 30 days?

If the answer to the above question is “Yes”, you may be able to appeal your sentence.

Simply, to appeal a sentence means to apply for a review of the decision of the lower court. In British Columbia, appeals from the Provincial Court are heard in the BC Supreme Court and appeals from the BC Supreme Court are heard in the BC Court of Appeal.

Commonly, grounds for an appeal are either based on an error in law or procedure; not facts.

In submitting a notice of appeal based on error in law or procedure, we are arguing that the judge made a mistake in the court proceeding concerning a matter of law or procedure. An example of an error in law is a judge that improperly admits evidence during trial that should have be excluded based on a violation of Section 8 (Right to be secure against unreasonable search and seizure) of The Canadian Charter of Rights and Freedoms.

It is important to note that the purpose of an appeal is not to retry the case. This means that lawyers will not submit new evidence or present witnesses. Rather, the focus of an appeal is to correct an error that was made by the lower court or guide the interpretation of the law.

The appeal process can be quite complex. Before you make a decision to appeal your case, talk to a criminal lawyer. Having an experienced criminal lawyer on your team can help increase the chance of a positive outcome.

Contact us if you are thinking about appealing your case.

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Sexual Offences

What If You Are Charged With A Sexual Offence

The law of sexual assault in Canada is dynamic and constantly changing. There are several stages of the prosecution of a sexual offence that require important decisions on the part of the accused that you should not make without the guidance of experienced counsel.

When you are initially charged with a sexual offence, there will be bail considerations and an opportunity for negotiations with the Crown. Ultimately, if you are not guilty, you may end up having to go to trial.

An experienced lawyer will help you decide in which level of court your particular sexual offence case should be heard, in order to provide the best chances for an acquittal. Depending on the age and relationship to you of the complainant, a preliminary inquiry may or may not be fruitful. There are a wide range of highly technical procedures available to the Crown that a good lawyer knows how to anticipate and oppose.

At the preliminary inquiry stage, you want a lawyer with experience applying for witnesses to be compelled to submit to cross examination, and opposing other evidentiary motions.

At the trial stage, you want a lawyer with experience making third-party records applications, making prior sexual history applications, challenging the admissibility of confessions, cross examination, and most importantly, a lawyer who is very familiar with the unique nuances between the elements of different sexual offences. Depending on which sexual offence you are charged with, there may be subtle defences available to you based on your actions and/or intentions.

If you are guilty and want to take responsibility for your charges, you will need a lawyer who is current on the recent and continuing developments in the sentencing law of sexual offences. The aggravating factors that may increase your sentence for a sexual offence can be misunderstood and misused by Crown. You need a lawyer who can protect you from any such injustice and highlight any mitigating factors in your case to the court. There are also special sentencing considerations for sexual offences that you don’t face for any other type of crime, especially if the complainant is a youth. There are mandatory minimum jail sentences in some cases, and you could face very strict conditions for up to life. You need a lawyer who has experience with these procedures to help you navigate the system if you want to plead guilty in order to secure the best possible sentence.

Regardless of whether you are guilty or innocent, if you are charged with a sexual offence including but not limited to sexual assault, sexual interference, sexual exploitation, invitation to sexual touching, possession or distribution of child pornography, luring children, indecent exposure, voyeurism, human trafficking, or incest, you need an experienced lawyer with an expertise in this area of law to ensure you have the best opportunity for a good result.

If you have been charged with or are being investigated for a sexual offence, please don’t hesitate to contact us for a consultation.

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