Break and Enter and Related Charges

Break and Enter, Home Invasion, Being Unlawfully in a Dwelling Home and the associated crimes of Possession of Break-in Instrument and Disguise with Intent are all very serious crimes under the Criminal Code.
There are several charges under the Criminal Code related to the class of “BREAK AND ENTER” set out below. Each offence is outlined for you in this section as you scroll down.
- Break and Enter: s. 348 Criminal Code
- Home Invasion: s. 348.1 Criminal Code
- Being Unlawfully in a Dwelling House:s. 349 (1) Criminal Code
- Possession of break-in instrument: s. 351(1) Criminal Code
- Disguise with intent s. 351 (2) Criminal Code
WHAT IS BREAK AND ENTER?
The crime of break and enter is established under s. 348 of the Criminal Code and requires 2 elements:
- (1) breaking into or out of a place and,
- (2) having the intent to commit an indictable offence in such place.
FACTS ABOUT BREAK AND ENTER:
- In the case of a break and enter into a personal residence, the maximum penalty is up to life in prison.
- Breaking into or out of any other place is punishable up to 10 years if by indictment, or 2 years less a day if by summary conviction.
- Breaking” does not need to be evidenced by a broken door, window, or picked lock. It would be sufficient to simply enter into
an open door or window without invitation.
- “Breaking out” of a place even when access was gained by permission can constitute break and enter and happens when persons secret themselves inside a business or warehouse to later steal items and then “break out” with those items.
- It is not necessary to prove that a crime happened inside the property, only that there was an intention to commit a crime. This is because there is a presumption that in the unlawful entry there is intention to commit a crime. This presumption can be rebutted by credible evidence.
- Thus the only thing the Crown needs to prove to obtain a conviction is that there was an unlawful entry or exit form the property.
- The role of Defence Counsel is to demonstrate that there was no improper intent.
WHAT IS A “PLACE” and a “DWELLING HOUSE”?
PLACE: The Criminal Code defines “place” to include: a dwelling house; any building other than a dwelling house; a train car, vessel, aircraft, or trailer; or any area where animals are kept as pets or livestock such as a barn or pen.
DWELLING HOUSE:A dwelling house is any structure occupied by people as a residence, either temporarily or permanently and includes all attached areas such as a garage. Recreational vehicles or campers that have residents can also be dwelling houses.
The Criminal Code Provisions for Break and Enter are:
Breaking and Entering Defined by the Criminal Code
Breaking and entering with intent, committing offence or breaking out
- 348
(1) Everyone who- (a) breaks and enters a place with intent to commit an indictable offence therein,
- (b) breaks and enters a place and commits an indictable offence therein, or
- (c) breaks out of a place after
- (i) committing an indictable offence therein, or
- (ii) entering the place with intent to commit an indictable offence therein, is guilty
- (d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
- (e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.
- Presumptions
(2) For the purposes of proceedings under this section, evidence that an accused- (a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; or
- (b) broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after
- (i) committing an indictable offence therein, or
- (ii) entering with intent to commit an indictable offence therein.
- Definition of place
(3) For the purposes of this section and section 351 place means- (a) a dwelling-house;
- (b) a building or structure or any part thereof, other than a dwelling-house;
- (c) a railway vehicle, a vessel, an aircraft or a trailer; or
- (d) a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes.
WHAT DOES “ENTER” MEAN?
Section 350 of the Criminal Code reproduced below confirms that entry occurs when any part of an instrument or body part is within anything being entered.
Entrance
350 For the purposes of sections 348 and 349,
- (a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and
- (b) a person shall be deemed to have broken and entered if
- (i) he obtained entrance by a threat or an artifice or by collusion with a person within, or
- (ii) he entered without lawful justification or excuse by a permanent or temporary opening.
Sentence for Break and Enter
- A conviction for break and enter into a dwelling carries a maximum sentence of imprisonment for life. These are very serious consequences.
- Break and enter into a non-dwelling carries a maximum sentence of 10 years in prison if by indictment, or 2 years less a day if by summary conviction.
BEST DEFENCE FOR BREAK AND ENTER
The best defence to Break and Enter is to demonstrate that you had no intention to commit any crime.
WHAT IS UNLAWFULLY IN A DWELLING HOUSE?
Section 349 of the Criminal Code of Canada provides as follows:
Being unlawfully in dwelling-house
- 349
(1) Every person who, without lawful excuse, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or of an offence punishable on summary conviction. - Presumption
(2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling-house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein.
The sentence is clearly laid out for this charge as either 2 years less a day if by summary conviction, or up to 10 years if by indictment.
BEST DEFENCE FOR UNLAWFULLY IN A DWELLING HOUSE
The best defence for being unlawfully in a dwelling house would be having a lawful excuse to enter the dwelling house. It could also be “mistake” as an accused could have walked into the wrong home. Intoxication could be an defence or a medical or mental health condition which rendered the accused unable to appreciate his surroundings or to voluntarily form the intent to enter a home unlawfully. Occasionally identification can be an issue to be argued.
WHAT IS HOME INVASION?
A home invasion is an Aggravating circumstance under the Criminal Code. A home invasion occurs if the accused:
- either knew that people were inside or were reckless as to whether they were inside at the time of the break and enter, AND
- Used threats of violence or actual violence against a person or property.
Both elements must be present. The Courts treat these more serious than regular break and enters including break and enters of a dwelling and an accused can expect a long prison sentence upon conviction.
Section 348.1 of the Criminal Code of Canada provides as follows:
Aggravating circumstance — home invasion
348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence,
- (a) knew that or was reckless as to whether the dwelling-house was occupied; and
- (b) used violence or threats of violence to a person or property.
BEST DEFENCE FOR HOME INVASION
The best defence for a home invasion is usually identification. Persons invading homes usually conceal their identity to some extent. Also, if no actual violence was used and the allegation is that there was a threat of violence, this can be disputed as an interpretation by the occupants who may have been in fear rather than any intentional expression of violence.
WHAT IS POSSESSION OF BURGLARY TOOLS or BREAK-IN INSTRUMENTS?
Possession of break-in instrument
- 351 (1) Every person who, without lawful excuse, has in their possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe knowing that the instrument has been used or is intended to be used for that purpose,
- (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
- (b) is guilty of an offence punishable on summary conviction.
BEST DEFENCE FOR BURGLARY TOOLS OR BREAK-IN INSTRUMENTS
The best defence for possession of Burglary Tools or Break-in Instruments a home invasion is usually to have a simple but credible explanation for having them. If you are an auto mechanic or skilled tradesman or camping it would be customary to have tools with you. Each case is dependent on the circumstances.
WHAT IS POSSESSION OF INSTRUMENTS FOR BREAKING INTO COIN-OPERATED OR CURRENCY EXCHANGE DEVICES?
352 Every person who, without lawful excuse, has in their possession any instrument suitable for the purpose of breaking into a coin-operated device or a currency exchange device, knowing that the instrument has been used or is or was intended to be used for that purpose, is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than two years; or
- (b) an offence punishable on summary conviction.
BEST DEFENCE FOR: Possession of Instruments for Breaking into Coin-Operated or Currency Exchange Devices
The best defence for this charge is usually to have a simple but credible explanation for having them. If you are an auto mechanic or skilled tradesman or camping it would be customary to have tools with you. Each case is dependent on the circumstances.
WHAT IS WEARING A DISGUISE WITH INTENT?
Disguise with intent
S. 351(2) Every person who, with intent to commit an indictable offence, has their face masked or coloured or is otherwise disguised is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
- (b) an offence punishable on summary conviction.
BEST DEFENCE DISGUISE WITH INTENT
The best defence for wearing a disguise with intent is allege identification as an issue in the case. If you were not at the location then you could not have been wearing a disguise with intent.
THINKING OF PLEADING GUILTY – THINK AGAIN!
Sometimes you think of pleading guilty just to get it over with. But think twice. If you do, you are:
- exposing yourself to criminal penalties including jail, fines and difficult probation terms,
- many severe consequences of conviction that you should be aware of that are discussed below.
- You may very well be pleading guilty when you have valid defences.
- On your own you would not be able to advocate for the best resolution of your matter.
At LAWYER UP, we are able to review all of details of the charge, your facts, background factors, get your version, and determine what available defences you have and lay out different defence strategies to you or resolution strategies to see you have the best possible outcome. The Legal System is very complex and very adversarial. Only Defence Counsel will have your best interest at stake. You cannot rely upon the Crown attorney to represent you.
PROBATION TERMS UPON CONVICTION
In addition to any sentence, you receive you will likely be put on Probation. Some Probation terms are listed below:
- PROBATION: It would be standard upon conviction to receive Probation with terms to keep the peace and be of good behaviour, appear before the court when required to do so by the court; and notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.and other typical terms such as report weekly to a probation officer
- NO ALCOHOL or DRUGS PROBATION TERM: if drugs or alcohol were a factor in your crime, you would be ordered to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance; AND, if the offender agrees, and subject to the program director’s acceptance of the offender, participate actively in a treatment program approved by the province
- NO WEAPON PROBATION TERM: if the court is concerned about potential for violence they may order you to abstain from owning, possessing or carrying a weapon
- RESTITUTION PROBATION TERM: Order to make Restitution if there was any financial loss. The Court would consider such factors as the availability of insurance to the victim, and your financial situation.
- COMMUNITY SERVICE PROBATION TERM – you could be ordered to perform up to 240 hours of community service over a period not exceeding eighteen months;
- OTHER REASONABLE PROBATION TERMS
OTHER CONSEQUENCES OF CONVICTION
Potential consequences of a conviction include:
- CIVIL LAWSUITS – you may be sued
- EMPLOYMENT CONSEQUENCES – many employers require that you be bondable, have good driving records, and be of good character. Having a criminal record would make it difficult to work in many industries. You may have ongoing security or criminal checks in your current employment that may result in loss of your employment. Even for Driving records, you could be dropped from your employment if you are convicted of a substantial charge as it would increase their fleet insurance.
- EDUCATIONAL RESTRICTIONS – many Colleges and Universities do not admit persons with certain Criminal Records
- IMMIGRATION CONSEQUENCES – a conviction could seriously jeopardise your ability to remain in Canada if you are not a citizen and removal / deportation proceedings would likely be commenced
- RISK OF BREAK OF PROBATION – if you are charged with another Criminal offence or BREACHING your PROBATION TERMS, you will likely face another Criminal Offence of Breach of Probation.
- CRIMINAL RECORD – is a stigma publicly and personally
- EXPENSE OF APPLYING FOR A PARDON – you will have to incur the expense of applying for a Pardon many years down the road
- TRAVEL RESTRICTIONS – Having a Criminal Conviction will create difficulty for future travel abroad alone or with your family, especially the United States and the U.K.
- PROPERTY DAMAGE DENIED – Your own vehicle damage claim denied if you are involved in an accident.
- INSURANCE INCREASES – rate increases for 3 years – likely 100% increase. In the most severe of cases, your policy may be cancelled.
- DNA ORDER – the Crown has discretion to seek a DNA order.
FIRST TIME OFFENDERS
The Justice System is more lenient on 1st time offenders because they understand that people make poor choices. The Court will be more lenient towards 1st Offenders than repeat offenders, especially in less serious crimes.
If you are a 1st time offender, we can explain to you a number of options that we can pursue to have you pass through the Criminal System and possibly have:
- Charges Withdrawn – No Criminal Record
- Diversion – No Criminal Record
- Absolute or Conditional Discharge – No Criminal Record
- Conditional Sentence – House Arrest – keep your job – no jail
UNDERLYING ISSUES TO THE CHARGES
Your charge may have been motivated or caused by many different factors.
We dig deep to try to find the underlying causes or explanations that can lessen any impact upon you in the case and assist in having the charges either WITHDRAWN, DIVERTED, or have you receive an ABSOLUTE OR CONDITIONAL DISCHARGE WITH NO CRIMINAL RECORD.
If you are convicted and sentenced we seek to help you avoid incarceration by pleading for a Conditional Sentence allowing you to serve your sentence under “HOUSE ARREST” where you can continue to attend work.
Some Underlying issues of these offences are:
- FINANCIALLY DRIVEN CRIME: In some cases the commission of the offence is deliberate, and well-planned and/or part of an organized crime operation for financial benefit either of the individual or a group of individuals working together.
- SUBSTANCE ABUSE DRIVEN – Sometimes commission of the offence is the result of a need to fund an addiction to substances.
- COMPULSION – sometimes this offence is the result of a compulsion
- MENTAL HEALTH DRIVEN – In other cases a mental health component is driving the behaviour. The accused may be totally unaware of this and feel out of control. Anxiety, Depression and other mental health conditions can contribute to the commission of the offence.
- INTELLECTUAL DISABILITY – Occasionally an accused will have an intellectual disability as a result of an organic or acquired brain injury or birth issue. This can lower the capacity to understand the nature of their actions and appreciate their potential criminal consequences.
- OUT OF CHARACTER BEHAVIOUR – these are one time events in a person’ life, brought upon by a multitude of factors that create a perfect storm for a person to commit certain offences. It is very, very common for a responsibly employed person with a family, a steady job, and no prior criminal record, facing a serious personal or family health issue to commit a crime.
- MEDICAL INCIDENT CASES – in some cases a person will have a medical condition and carry out the actions of a crime while their mind is not clear.
HOW WE CAN RESOLVE MATTERS FOR YOU
Jail and Criminal Records are one way of dealing with a conviction and all the offences provide for some type of penalty fines or incarceration. However, they are not the best result for the accused. We will help to balance the Court’s objectives in sentencing so that there is less emphasis on punishment and more on assisting an offender to rehabilitate. The matrix the Court tries to consider when sentencing is:
(i) to separate offenders from society;
(ii) to provide reparations for harm done to victims/ or community;
(iii) to promote a sense of responsibility in offenders and their acknowledgement of any harm done to their victims and to the community; and
(iv) to assist in rehabilitating offenders.
We will dig deep to examine all underlying factors contributing to the circumstances of the actions that led to your being charged.
If necessary, we will obtain medical reports and other records and send you for any assessments from our team of Psychologists and Psychiatrists to obtain proper documentation of relevant factors to assist you and the Court in making the best and most fair decision.
We look at ALL AVAILABLE Options to Benefit you including:
- Seeking approval of a Diversion Program , if available,with the result that the charges would be withdrawn upon completion of your conditions set out in the Program.
- We would seek all other sentencing options that could result in more favourable outcomes including no records in some cases. Judges have the ability to order any of the following:
DIVERSION PROGRAMS: REPRESENT HOPE
A program called DIVERSION, is available for persons charged with less serious offences. Typical offences would include but are not limited to mischief, theft, possession of property obtained by crime, obstruction, fraud, public intoxication and so forth.
In more serious cases, the Crown’s office would have to be persuaded this is appropriate and this would require intervention and advocacy by a competent Criminal lawyer.
Many cities including New market, Toronto, Brampton, Oshawa, have DIVERSION PROGRAMS which offer 1st time offenders the option to have the charge “Diverted” from the Court system and the “Charges Withdrawn” provided certain conditions are present.
Each Courthouse has its own eligibility requirements for Diversion and the Crown’s Office will review the same to make that determination.
For Diversion eligibility, the key points are:
- In cases where the amount is minor, and the property is recovered – the Crown may pre approve the case for the Diversion Program
- Diversion is designed for persons with no prior contact with the Criminal Justice System.
- If the accused has other pending charges, or prior dealings with police even if no charges laid, or charges laid and no conviction, it is unlikely that the matter will be Recommended for the Diversion Program.
This is not to say that you will not receive Diversion.It will mean that you will need a good Criminal Defence lawyer in your corner advocating for Diversion on your behalf to help you overcome these issues to persuade the Crown on this or the Judge.
The Crown will consider:
- The character of the accused
- The record of the accused
- The danger to society
- Damage done
- If any restitution made
- Any cooperation of the accused at the time of arrest
- Requirements imposed to satisfy Diversion Programs are determined by the facts of each particular case and could include:
- Make a charitable donation;
- Complete a specified number of community service/volunteer work hours;
- Both Charitable Donation and community Service;
- Deliver a statement of apology to the victim;
- Make restitution;
- Complete a substance abuse program;
- Complete an anger management program;
- Any other mental health counselling;
- Other – as may be determined by the judge
Once the requirements of the Diversion Program have been met, the Defence Counsel can relay this to the Crown and ensure that the Charge is withdrawn against the accused.
If a person is not pre-screened as eligible for the diversion program, a lawyer may be able to convince a Crown Attorney to reconsider their decision.
MENTAL HEALTH DIVERSION
A Program called MENTAL HEALTH DIVERSION is available for persons charged with less serious offences. They are applicable especially where there exists a mental health disorder or addiction.
The underlying idea is that Mental health diversion recognizes that it unfair for a person with mental illness to suffer Criminal punishment and consequences for relatively minor offences that pose a low risk to the public.
If accepted into the diversion program the accused would receive community-based treatment to assist with their overall mental health, and addictions with the goal of preventing repeat of the offending behaviour.
Acceptance into the Mental Health Diversion Program is generally available to persons who suffer significant mental disorders such as:
- Schizophrenia and Schizo-Affective Disorders
- Bipolar Disorders and other Mood Disorders
- Psychotic Disorders
- Perception and Thought Disorders
- Depression
- Anxiety Disorders
- PTSD
- Memory Disorders
- Fetal Alcohol Syndrome Disorders
Many times an accused with these conditions will also suffer with a drug or alcohol addiction.
Call LAWYER UP to see if you are eligible for the DIVERSION PROGRAM.
CONDITIONAL SENTENCES
In the event a client receives a sentence of less than 2 years, we can seek a “Conditional Sentence” result which would avoid the accused having to go to jail.
A conditional sentence can be imposed by a Judge to allow a convicted accused to avoid having to spend time in jail and serve that sentence outside of jail under, under strict, jail‑like conditions. This does not affect the fact that there will still be a Criminal Record.
Conditional sentences are sometimes called “house arrest,” because they often require the offender to spend all or part of the sentence in their house.
A judge can only impose a conditional sentence if:
- the sentence of imprisonment is less than two years;
- the offender has not been convicted of a criminal offence that requires a minimum amount of jail time;
- the offender has not been convicted of a terrorism offence, serious personal injury offence, or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more;
- the judge is satisfied that by serving the sentence in the community the safety of the community would not be threatened;
- the judge is satisfied that having the offender serve the sentence in the community is consistent with the sentencing principles of the Criminal Code.
Common Elements of Conditional Sentences
- mandatory conditions, and restrictions will be in a conditional sentence that make it like a strict jail sentence. House arrest usually means that the offender must stay in their home at all times (or during certain hours) unless they are working, attending school or religious worship, or for medical appointments or emergencies.
- Other conditions attached will be similar to those in a probation order. It is common for a probation order to follow a conditional sentence.
- Supervision is by a conditional sentence supervisor (who is actually a probation officer)
- every conditional sentence requires the offender to report to the conditional sentence supervisor at least once, but reporting several times can be expected
- Breach of one or more of the conditions of a conditional sentence, will result in a hearing held in front of a judge.
- If the judge is convinced that the accused broke one or more of the conditions without a lawful or reasonable excuse, the judge may make the offender serve the remaining time in jail.
DEFENCES
- ACTUS REUS ELEMENTS: These are the required “physical elements: of the offence that the Crown must prove. As part of your defence, we would seek to raise defences to each required element of the charge. The Crown must prove all of the physical essential elements of each charge beyond a reasonable doubt.
- MENS REA – This is the mental element requirement of the offence and requires the Crown to establish that you voluntarily and wilfully intended to commit each of the separate elements described in the offence. It is essential to bring out all the facts to demonstrate that an accused acted diligently and had no actual knowledge of certain factual elements or was not wilfully blind as to them, or that any actions were not done voluntarily or wilfully or with criminal intent.
- SEARCH & SEIZURE DEFENCE – This is not so much a defence as it is a strategy to exclude evidence but is a crucial element in a solid defence strategy. Most charges arise as a result of a seizure of property in a home, car or other location. The Police have to follow legal requirements to obtain the right to enter property and conduct searches. This usually requires a Search Warrant. We closely scrutinize the validity of how the warrant was obtained and will bring all necessary motions to exclude any evidence improperly obtained in order to protect your constitutional right set out under Section 8 of the Charter which provides that “Everyone has the right to be secure against unreasonable search or seizure”.
- POSSESSION: Under the Criminal Code a person has anything in possession when they have it in their personal possession or knowingly. Possession from a legal point of view is not a simple matter. The easy cases are when an accused is caught with the stolen property in their physical control. However, you do not have to have “actual physical possession” to be convicted as the law permits constructive and joint possession. You can be legally found in possession when:
- where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
- you have it knowingly in the custody of someone else, for your use or another person
- you have it knowingly in a place (for example storing it there) whether or not that place belongs to or is occupied by you, for the use or benefit of yourself or of another person.
- REASONABLE EXCUSE – in many offences having a reasonable excuse for taking action or any inaction may provide an accused with a complete defence, even where the accused may have actually committed all the necessary elements of the offence and voluntarily and wilfully did so. An example of a reasonable excuse would be a medical emergency. The reasonableness will be judged in all the circumstances.
- NECESSITY – in some circumstances Necessity can be a valid defence. Again, the Court would look at the entire situation and determine if this is valid to relieve the accused from criminal responsibility. Necessity is a defence pursuant to Section 8 (3) of the Criminal Code which provides that
“Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.”
The defence of necessity requires that:
- There was some type of imminent peril or danger;
- There was no reasonable legal alternative other than commit the offence; and
- That the harm caused by the accused was not disproportionate to the harm he was trying to avoid.
- CONTINUITY OF EVIDENCE – We insist that the Crown prove that the evidence in the case has been handled properly and in accordance with strict legal requirements.
- CHARTER DEFENCES – If any of an accused’s Charter rights were violated these would provided a remedy including the dismissal or staying of charges against the accused or the exclusion of evidence. if the Police did not advise you of your right to remain silent, or right to counsel, and did not permit you to contact counsel promptly, or abused you in the course of arrest, or you failed to receive a trial within a reasonable time. Some of your key Charter Rights are:
- the right against unreasonable search and seizure;
- the right to not be arbitrarily detained;
- the right to be informed promptly of the reasons for arrest;
- the right to retain and instruct counsel without delay; and
- the right to be tried within a reasonable time.
- PROVE IT: We would insist upon the Crown to prove all elements of the offence Beyond a Reasonable Doubt. If a reasonable doubt exists on ANY of the essential elements of the charge, then the Crown’s case is not provable in Court and you cannot be convicted.
YOUR RIGHT TO TRIAL WITHIN A REASONABLE TIME
Cases are regularly dismissed simply for failure for the Court, for whatever reason, to have these trials completed so long as the delays are not completely the fault of the Accused or his/her counsel.
In simple terms, the Supreme Court of Canada has interpreted section 11(b) of our Charter of Rights and Freedoms that guarantees everyone a right to be tried within a reasonable time by setting clear standards for trials to be completed.
- Trials must be completed if in the Ontario Court of Justice – Provincial Court within (18 Months), and
- If in the Superior Court of Justice, within (30 Months).
- The time starts when the charge is laid and runs to the date of the expected completion of the trial.
- Anything beyond this amount of time (minus defence delay) is presumed to exceed the ceiling and gives the Defence the Right to bring a Charter Application to have the Case Stayed (effectively dismissed) on account of delay.
Only in very exceptional circumstances can the Crown argue it is unreasonable to ask for a Dismissal. Some of the largest Criminal cases in Canadian history have been dismissed on this basis and many, many cases are dismissed for delay.
We will utilize this right in our arsenal of tools to properly defend our clients no matter what the charge and if the case is delayed you can expect we will argue it to be dismissed.
Conducting a Preliminary Inquiry
Whenever there exists a possible jail sentence of 14 years or more, an accused has the right to have a preliminary inquiry. We as your defence counsel would advise you about this option and if instructed to proceed, we would arrange a date for a Preliminary Inquiry to be held in the Ontario Court of Justice. Thereafter, if the matter is not resolved and goes to trial, the trial would be in the Superior Court of Justice before a court by Judge alone or Judge and Jury.
- The preliminary inquiry is not mandatory and can be waived by the accused who would then proceed directly to trial in either the Ontario Court of Justice or the Superior Court of Justice. If the trial is to be completed in the Superior Court of Justice, a waiver of the preliminary inquiry requires the consent of the Crown.
- At a preliminary inquiry, the Crown is required to call sufficient evidence upon which a properly instructed jury, acting reasonably, may return a verdict of guilt. This is an easy test for the Crown to meet in the vast majority of cases.
- The Preliminary Inquiry allows the Defence an opportunity to test the evidence and witnesses of the Crown and discover any strengths and weaknesses in their case. This helps in formulating an effective defence strategy going forward.
RELEASE AFTER ARREST & BAIL HEARINGS
Normally, If you are arrested you would face one of two scenarios:
- You could be released at the station by the Officer in Charge on a Promise to Appear – this is discretionary and if you make your phone call to us from the station or before you are charged we can attempt to negotiate your release in this manner. Otherwise, you will be held for a bail hearing;
OR
- In any bail hearing it will be a normal bail in which the onus is upon the Crown to show why you should not be released. If it is a “reverse onus” bail, then instead of the Crown having to demonstrate why the accused should not be released, the onus is on the accused to show why they should be released. This higher onus means if you are charged, you need to be prepared seriously for any bail hearing, with sureties and a solid bail plan.
We can help you make bail whatever situation you should find yourself in..
APPEALS OF CONVICTION & SENTENCE
If you have been convicted, you can appeal both your conviction or sentence or both. Usually, an appeal must be filed within 30 days of the date that sentence is imposed otherwise leave to appeal must be obtained. We would be happy to discuss with you your case and your appeal options.
If it is necessary to launch an appeal, It is necessary that we order transcripts immediately and provide the Court with a Certificate to confirm this at the time we file your Appeal.
Because time is of the essence, don’t delay, call right away to arrange a consultation.
RECORD SUSPENSIONS AND PARDONS
If you have been convicted of any offence we can apply on your behalf for a record suspension pursuant to the Criminal Records Act. There are mandatory waiting periods after conviction before you are eligible. Contact us and we would be happy to discuss this with you.
SHOULD I SPEAK TO THE POLICE & OTHER TIPS?
Typically, any person potentially involved in a crime should not be speaking to the police before getting proper legal advice because:
- They may or may not know that you were involved with any certainty. Using camera technology, the police can identify persons and also track their vehicles on roadways, get vehicle plate numbers and locate the owner of the vehicle. Police have other investigative tools as well to locate potential suspects.
- The Police may call you or show up at your residence when you are not prepared to speak to them.
- The Police may say they are there to try to “clear up” a situation or to exclude you from being involved and ask where you were on a specific day and time. If you lie, you will have further problems.
- The Police may try to tempt you by saying if you “cooperate” they may not lay any charges. Remember that the Police are there to conduct an investigation.
- They are allowed to lie as an investigative tool in order to secure statements from persons they are investigating
- Do not rely on “advice from the police” as they are not acting in your interest
WHAT SHOULD I DO WHEN THE POLICE SHOW UP?
- Do not speak to the police about the matter. Listen to what they say and then tell them sorry, you have nothing to say. I’m going to call a lawyer. Then call us.
- If they ask you “do you mind if we step inside to speak” you should say you would rather they stay outside because once you invite them inside, anything they inside will be fair game for them. If they see anything linking you to the crime they are investigating, or any other potential crime they can charge you. For example, if they see Marijuana plants growing in a room, and you have no licence for this, you would be charged.
- Do not make any decisions based on what the police tell you or before you have all the facts. Make that decision AFTER speaking to our office.
- Do not post evidence or comments online or speak to others about any potential crime as you create a public record.
- Do not speak to others about the potential crime as you’ll only create more possibility of witnesses against you.
- Advise them that you are exercising your right to remain silent and your right to contact your lawyer.
- They may take you into custody and arrest you but you are far better off in all criminal cases to make no statement to the police.
- Insist upon calling our office if you are arrested for advice.
- Remember that any statement you give will likely be used against you.
- If you give any statements, you end up pinning yourself down to a version of events that you are stuck with and that will hamper your defence.
- Do Not take any cell phone with you to the police station if you are taken into custody as the police commonly will do forensics on your cell phone while you are in custody.
- Do Not Consent to any form of Search of your home or vehicle. Police need a search warrant to conduct any search.
REASONS TO CHOOSE LAWYER UP
- We know the Law: We understand the charges you are facing and have the skill to deal with the complex legal issues in them.
- Legal System for You: We make sure the legal system works not just for the police and the Crowns but for you !
- We are Fast: We will be in your corner from the first call.
- Unique Plan: We will develop with you a unique plan for your case. We will consider all of your personal factors, family, employment, immigration, travel, finances, etc.
- We Listen: You can reach us by phone/email anytime.
- Progress Updates: Regular progress updates on the case.
- You are Never Alone: We communicate with you. You’ll never be in the dark.
- Peace of Mind: Wego to Court for you so you don’t have to, except when absolutely required by the Court.
- We Go Above and Beyond to Have your Back: We are in your Corner and dig deep, working hard and smart leaving no stone unturned to protect your rights using all legal means available.
- Flexible Financial Plans: We’ll work out financial payments that you can manage.
- We See the Big Picture: We’ll protect ALLof your rights. Under Canadian law you are presumed innocent until proven guilty. You are not required to prove your innocence, only raise a reasonable doubt as to your guilt, based on all the evidence before the Court.
- We seek to minimize all negative Consequences: We try to minimize the negative effects of a conviction and criminal record on you which could expose you to civil actions, risk to employment, education, or travel plans and harm your immigration status.
- One Stop Legal: We can deal with any spin off legal issues including your immigration, employment or any civil actions if needed so you won’t have to find another lawyer. Since we know your case, you’ll save money.
- Our Goal: We aim is to investigate the facts and to negotiate a conviction-free result for you. We always seek a conviction-free resolution with NO CRIMINAL RECORD. Secondly, we always seek to have you avoid any jail time, by looking for alternate opportunities available in sentencing other than jail. We bring to the Crown’s and Court’s attention all factors that mitigate against a harsh sentence and in the worst scenario if Jail is the only option available, we will pursue a Conditional Sentence so any time may be served under House Arrest allowing you to continue to see your family and go to work.
- Fair treatment and Vigorous Defence: We are relentless to obtain an acquittal or resolution at the earliest opportunity for you. We do our best to ensure you receive fair treatment throughout any allegations are vigorously defended by tough negotiation, and tough cross-examination when necessary, and by bringing all required Court Motions to protectall your legal and procedural rights from beginning to end.
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Areas we serve for criminal defence law in Ontario

Ajax

Alliston

Amherstburg

Angus

Arnprior

Aurora

Barrie

Beamsville

Belleville

Binbrook

Bolton

Bowmanville

Bradford

Brampton

Brantford

Burlington

Caledon

Caledonia

Cambridge

Carleton Place

Chatham-Kent

Clarington

Collingwood

Cornwall

Elliot Lake

Elmira

Fergus

Fort Erie

Georgetown

Guelph

Hamilton

Hawkesbury

Ingersoll

Innisfil

Kanata

Kawartha Lakes

Kenora

Keswick

Kingston

Kitchener

Leamington

London

Markham

Midland

Milton

Mississauga

New Hamburg

Newmarket

North Bay

Oakville

Oakville

Orangeville

Orillia

Oshawa

Ottawa

Owen Sound

Paris

Pembroke

Petawawa

Peterborough

Pickering

Port Colborne

Port Hope

Richmond Hill

Rockland

Sarnia

Sault Ste. Marie

Simcoe

St Catharines-Niaraga Falls

St. Thomas

Stratford

Strathroy

Sudbury

Thunder Bay

Tillsonburg

Timmins

Toronto

Uxbridge

Valley East

Vaughan

Wallaceburg

Welland-Pelham

Whitby

Windsor

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