Jan 07
Domestic Assault
Domestic Assault
A domestic violence or domestic assault conviction can result in jail time and a criminal record, leading to future challenges such as employment, travel restrictions, and perhaps most importantly, it may result in not being able to see your children or fulfill an active role in their lives.
Domestic can mean a relationship between married or non married partners, a parent and child, sexual partners, siblings, or other more broadly defined domestic relationships.
Police will usually lay charges when they receive a complaint of domestic violence. Until your charge has been dealt with in court, you will be prohibited from having contact with the complainant and possibly even your children.
There is a common misconception in domestic charges that the charges will be withdrawn if the complainant no longer wants to press charges. That is not the case. The Crown and police are the ones who decide whether they will proceed with the charges or not. The Crown will not withdraw the case simply because the complainant wants them to.
Domestic Violence and Domestic Assault
In order to secure a conviction of domestic violence, the Crown must prove its domestic violence or family violence case beyond a reasonable doubt. The fact that allegations occurred in a domestic relationship would be an aggravating factor on sentence.
Domestic violence charges can be laid as any form of assault, criminal harassment, uttering threats and forcible confinement.
If you have a restraining order against you in a domestic violence case which prohibits contact with your family, a criminal lawyer can assist in having the order lifted in a court of law, should circumstances warrant it.
The Criminal Code also contains special provisions that serve to protect victims of domestic violence.
The criminal defence lawyers at LZZ have extensive experience successfully defending against all types of domestic assault related allegations. If you or someone you know has been charged with domestic assault you should contact a criminal lawyer immediately to help determine the best defence. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.
Common Questions Regarding Domestic Offences
Will my charges get withdrawn if the complainant advises the Crown they no longer want to proceed with the criminal charges?
No. Just because the complainant no longer wants to proceed with the charges or wants to recant their statement does not mean the Crown will automatically withdraw the charges. Although the Crown often seeks complainant input when deciding how to proceed with domestic charges, they do not have to withdraw the charges just because the complainant has asked them to or the complainant is no longer willing to participate.
Can I talk to the complainant to convince them to drop the charges?
No. You are unable to speak to the complainant either directly, or indirectly, for the duration of your criminal matter. Although there may be some exceptions to this, generally someone charged with a domestic offence cannot speak with the complainant until their charges are dealt with.
Why can I not talk to the complainant?
You cannot talk to your partner because you will be bound by a no-contact order for the duration of your criminal proceedings. If you contact your partner, either directly or indirectly, you may be charged with an additional criminal offence.
Can my partner talk to me?
Yes, they are able to contact you. However, you are restricted from contacting or responding to them.
What do I do if my partner contacts me?
You have to ignore them. You cannot respond to your partner through any form of communication.
When can I talk to my partner?
You will be able to speak with your partner once your criminal matter has been taken care of. If your sentence includes probation, you may be unable to contact your partner until you are completed probation as well.
What if the complainant and I have children together?
It is possible to be granted an exception to the non-communication order to allow communication with the complainant only for matters related to childcare. However, it is best that a neutral third-party assists in making any necessary childcare arrangements.
Can I see my children?
Likely, yes. This depends on the conditions of your bail. Typically, arrangements can be made to have contact or communication with your children through a mutually agreed upon third party.
Will I get a criminal record if I am convicted of a domestic assault?
The answer depends on the facts of your matter and whether or not you have a criminal record or a history of domestic related offences. After reviewing your matter, the lawyers at LZZ will be able to advise you about the likelihood of a criminal conviction.
Will I go to jail for a domestic assault?
It is possible. Whether or not you will be sentenced to jail is dependent on several factors, including, but not limited to, the seriousness of the allegations, your criminal record (including any previous convictions for domestic assault), and if the complainant chooses to cooperate with the police and Crown.
Does the complainant have to show up to court?
If the Crown subpoenas them to attend court, yes. If the complainant does not attend court, they may be charged with a criminal offence.
Can my lawyer give legal advice to the complainant?
No, your lawyer cannot properly represent you and provide legal advice to the complainant. However, the lawyers at LZZ will refer the complainant to another lawyer who would be able to assist them with any questions they may have.
Domestic Assault Blogs
I Want to Speak with My Spouse
Should I Hire a Domestic Violence Lawyer?
Brampton Domestic Assault Lawyers
How Can I get my Domestic Assault Charged Dropped?
Being Charged with Domestic Assault
I Have Been Charged with Domestic Assault
Drug Offences Blogs
Jan 07
Criminal Harassment and Threats
Criminal Harassment and Threats
When someone says something that could be perceived as threatening, it is not uncommon for them to be criminally charged. They may not realize how seriously saying things can result in these kinds of consequences and even incarceration if taken too far.
Harassment is a crime that can take many different forms. For instance, repeated phone calls or emails could be considered harassment as well as waiting outside of someone’s home and workplace for them. Stalking also constitutes a criminal behaviour in itself.
The criminal defence lawyers at LZZ have extensive experience successfully defending against all types of criminal harassment and threats. If you or someone you know has been charged with criminal harassment or uttering threats you should contact a criminal lawyer immediately to help determine the best defence. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.
Jan 07
Charter Applications
Charter Applications
The Canadian Charter of Rights and Freedoms addresses the basic freedoms and rights of Canadians. It is a set of laws containing the country’s basic values as a free, democratic society. All legislation must comply with the Charter to ensure that Canada remains an inclusive place for all people.
A criminal investigation can sometimes violate these freedoms in some way, however, there’s recourse when this happens. Where the violation of rights is particularly serious, an accused person may seek a dismissal of the charges, otherwise called a “stay of proceedings”. An accused person can also seek other remedies such as: exclusion of incriminating evidence, an adjournment of trial, order the crown to pay costs incurred to the accused or demand that the Crown make other compensation.
Constitutional rights are the cornerstone of the criminal justice system. The technical aspects of the court processes are subject to the Charter. Some rights that an accused person has are: the right to remain silent, the right to be present for all aspects of his or her trial and the right to be represented by counsel.
Laws themselves are also subject to Charter scrutiny. Whenever a law is passed by the government it must not violate the various constitutional guarantees already in place. If a law breaches a constitutional right, an accused person can bring an application to have the law either struck down or modified by the Court.
The criminal defence lawyers at LZZ have extensive experience successfully defending against all types of Charter violations. If you or someone you know has had their Charter rights violated during the course of a criminal investigation you should contact a criminal lawyer immediately to help determine the best course of action. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.
Common Questions Regarding Bail Hearings
What is the Canadian Charter of Rights and Freedoms?
The Canadian Charter of Rights and Freedoms, known as the Charter, guarantees all Canadians certain rights such as the rights to liberty and equality under the law. It also guarantees fundamental freedoms such as freedom of religion, freedom of expression, freedom of association and peaceful assembly. These are guaranteed only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
What is the relationship between the Charter and criminal law?
The Charter affects all areas of criminal law, from the investigation of a crime, procedural fairness at trial, and decisions about the use of evidence, right through to the sentencing hearing. The Charter can also be used to strike down a criminal law passed by parliament if it violates one of the freedoms protected by the Charter and the government cannot justify the violation.
How does the Charter affect a criminal investigation?
The Charter guarantees that Canadian citizens will not be subject to unreasonable searches (section 8) and seizure or arbitrary arrest or detention (section 9). An individual also has the right to be informed of the reason for arrest or detention (section 10(a)), and the right to obtain and instruct counsel without delay (section 10(b)). If any of these rights are violated in the conduct of a criminal investigation, the evidence obtained can be excluded at trial or the proceedings could be stayed.
How does the Charter affect a criminal trial?
Section 11 of the Charter sets out several specific guarantees which include the following:
• the right to be tried within a reasonable time;
• the right to not be a witness against oneself;
• the right to be presumed to be innocent until proven guilty according to law in a fair and public hearing by an independent and impartial court;
• the right not to be denied reasonable bail without just cause;
• the right to trial by jury where the maximum punishment is imprisonment for more than 5 years or a more severe punishment;
• the right, if acquitted of a charge, not to be tried for it again, and if convicted and punished, not to be tried and punished for it again;
• the right to be charged only in matters that constitute an offence under Canadian or international law, or in a criminal matter in accordance with general principles of law recognized by the community of nations.
How does the Charter affect punishment for criminal offences?
The Charter contains a guarantee against cruel or unusual treatment or punishment.
How do I bring a Charter application?
Before a pre-trial motion or the criminal trial, you will need to file a notice of application setting out the Charter breaches and the alleged factual basis for the Charter breach. This may require the filing of a factum with the Court.
The Charter breach may be that the police officer(s) had no grounds to arrest or search you, or that the Court and Crown have taken too long to prosecute you. There are several Charter allegations that could be made, so this must be properly outlined to allow the Crown to respond to the allegations.
During the Charter application, you will need to call witness and tender exhibit to support that your Charter rights were breached. The onus is on the party alleging a Charter breach to prove that a breach did happen. If successful, you can apply for a stay of proceedings (section 24(1) of the Charter) or to have the evidence excluded (section 24(2) of the Charter). A successful Charter challenge may end the criminal case against you, or it may significantly weaken the Crown’s case against you if specific evidence is excluded.
How do I find a lawyer to help me allege a Charter breach?
The Lawyers at Lockyer Zaduk Zeeh are experienced trial counsel who have brought Charter challenges alleging all types of different Charter breaches, such as illegal searches, unlawful arrests, and unreasonable delay. LZZ has also brought numerous successful Charter challenges finding that provisions of the Criminal Code or other Acts breach the Charter. We defend individuals charged with crimes across Ontario, and regularly represent individuals charged in Toronto, Peel (Brampton and Mississauga), Milton, Guelph, Kitchener-Waterloo, Woodstock London, St. Thomas, Sarnia, and Windsor.
Charter Applications Blogs
The Application of the Charter of Rights and Freedoms at the Border in Importation Cases
Jan 07
Break and Enter
Break and Enter
Break and enter allegations are serious. Generally, break and enter charges involve breaking into residential homes, businesses or commercial properties with the intention to commit an indictable offence.
Despite what you may think, you do not actually need to break or force entry somewhere in order to be charged with the criminal offence. There have been instances where walking through an open door has been held to constitute a break and enter. It is important to remember that a conviction of the crime is not dependent on any damage to the property that was entered.
Usually, break and enters are committed by people trying to steal property. In doing so, they have committed the indictable offence of theft or possession of property obtained by crime while breaking and entering. If the person does not have the intention to commit an indictable offence, but does unlawfully enter a premise, the court may find that he or she committed other offences under the Criminal Code.
The maximum punishment for break and enter can be up to life imprisonment. If the offence is in relation to a place other than a home, if convicted, the term of imprisonment could range from a finding of guilt to a maximum of 10 years in jail.
Unlawfully in a Dwelling
It is common to also be charged with unlawfully in a dwelling if a person has been charged with break and enter. If a person is found in any sort of residence that they were not invited to, they could be charged with being unlawfully in a dwelling-house. It is also assumed that the person had criminal intentions, such as theft or to provoke an unwanted encounter with persons in the home while in the residence.
In order for someone to be found guilty of unlawfully in a dwelling-house, the Crown must prove that the person had no justification for being on the premise and no intention to commit an indictable offence.
The criminal defence lawyers at LZZ have extensive experience successfully defending against serious break and enter allegations. If you or someone you know has been charged with break and enter you should contact a criminal lawyer immediately to help determine the best defence. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.
Frequently Asked Questions for Break and Enter
What is Break and Enter?
In Canada, break and enter charges involves one entering into residential homes, businesses, or commercial properties, without consent, with the intention to commit an indictable offence.
Is Breaking and Entering a Felony in Canada?
In Canada, our criminal offences are considered as summary, hybrid, or indictable. If the break and enter occurs in a residential home, it is a straight indictable offence. If the break and enter occurs in any other location, it is a hybrid offence where the Crown can elect to proceed by summary election or by indictment.
Is it Break and Enter if the Door is Unlocked?
Yes. The offence of break and enter only requires you to enter somewhere where you should not be. So, it is not a defence to say that the door was unlocked or open. For example, one can be charged with break and enter by going behind the counter at a kiosk, even though the kiosk has no doors.
What Sentence Will I Get for a Break and Enter?
The maximum punishment for Break and Enter involving a dwelling house is up to life imprisonment. If the offence is in relation to a place other than a home, the term for imprisonment if convicted can range from a criminal record to 10 years in jail depending on how the Crown proceeds with the case.
At a sentencing hearing, the judge will need to consider the facts of your case, aggravating and mitigating factors, and your background in order to fashion an appropriate and fit sentence. This is a contextual analysis. However, a break and enter, or a home invasion into a residence will carry a heavier sentence than one at a commercial establishment.
How Can I Beat My Break and Enter Charge?
There are numerous potential defences to a break and enter which includes identity, consent from the property owner, the lack of an intention to commit an indictable offence, or a Charter defence. Each of these defences if successful could lead to your acquittal of the charges. Since each case Is different, a lawyer can review your case to determine which defence(s) could give you the best chance of success at trial.
Jan 07
Breaching Court Orders
Breaching Court Orders
The conditions of bail or probation can be very strict and, if not followed, can lead to a criminal charge of breaching a court order. Common violations of court orders are:
- Failing to show up to court
- Failing to complete community service
- Failing to pay restitution
- Failing to meet with a probation officer
- Failing to abide by bail conditions such as a house arrest or curfew
- Breaching a long term supervision order (LTSO)
Breaking the court ordered rules can have serious consequences such as a criminal record and up to 4 years in jail. Moreover, your bail or probation could be rescinded, landing you back behind bars and your sureties could lose money that was pledged as collateral to ensure court compliance. If you are charged and convicted of a breach, law enforcement will see you as less reliable which ultimately hurts all aspects associated with successful trials – including future releases from custody.
Breaching a LTSO
A long term supervision order is an order imposed by the court as a sentencing option to an offender who has been designated as a dangerous offender pursuant to section 753 of the Criminal Code.A long term supervision order can be made for a period of up to 10 years. During this time, individuals with LTSOs are supervised in accordance with the Corrections and Conditional Release Act and are required to abide by court ordered conditions. You will be charged with a criminal offence that carries a maximum sentence of 10 years in jail if you do not comply with your supervision order.
LZZ has a history of successfully fighting allegations of breaching court orders. The most common defence is that of a lawful excuse. If we can establish that there was a legitimate reason that you did not comply with the court order you will be acquitted.
The criminal defence lawyers at LZZ have extensive experience successfully defending against all types of court order breaches. If you or someone you know has been charged with breaching a court order you should contact a criminal lawyer immediately to help determine the best defence. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.