If you’re an American and planning to visit Canada, whatever you do, leave your guns at home! Every year hundreds of Americans show up at the Canada-U.S. border with guns or rifles, and either fail to declare them to Canada’s border guards (Canada’s Customs and Border Services Agency (CBSA)), or deny having any firearms with them knowing that they’re carrying guns on their person or have guns and rifles in their luggage or cars.
For Americans who do this, a painful process lies ahead if they’re caught. If they’ve arrived from the United States by car, the car is typically seized and impounded and will not normally be released until a significant administrative fine has been paid. Ironically, this is the least of their worries. Their real problems begin when they’re arrested and charged with serious firearms offences for possessing firearms in Canada in breach of the Canadian Criminal Code. Most Americans would be shocked to learn that entering Canada with a loaded, semi-automatic pistol such as a Glock 17 constitutes a crime which can be punished with a minimum three year jail sentence.
Americans who have been arrested can expect to be detained and brought before a judicial officer for a bail hearing. Canadian law enforcement will likely oppose their release unless they can pay a substantial cash bail, sometimes up to thousands of dollars. If they are released, they won’t be welcomed back to Canada with open arms to continue their trip. They’ll be turned around and sent home and allowed to return to Canada only to attend court for their gun charges.
Sadly, Americans do not realize the extent to which American gun laws differ from Canadian gun laws. While gun laws in the United States are among the laxest in the Western world, Canadian gun laws are among the strictest. More importantly, for travel purposes a gun permit is not like a driver’s license. An American’s permit to own and carry firearms under state or federal laws in the United States is under no circumstances portable to or valid in Canada.
Once charges have been laid, it is not easy to resolve them without serious consequences. Significant fines are common and jail time is not unheard of, even for Americans of otherwise excellent character such as members of the United States military. After being found guilty of gun offences in Canada, Americans are likely to be found “inadmissible” to the country under Canadian immigration law, and will have difficulty gaining entry again.
The message for Americans coming to Canada is simple. Leave your firearms at home. If you forget to do that and find yourself at the Canadian border with firearms, do not lie to Canadian officials about your firearms. Your only option is to advise border officers that you have firearms you forgot to leave behind and ask for permission to return to the United States immediately. If you do anything else, you are liable to end up in a whole lot of trouble.
Obviously you will succeed in avoiding a criminal record for an offence if you are found not guilty of it after a trial.
There are, however, some less obvious paths to avoiding a criminal record. Depending on the type of offence you have been charged with and the alleged circumstances of that offence, avoiding a criminal record can be achieved by:
- Alternative Measures/Diversion. Persuading the Crown to resolve your case using alternative measures (diversion).
- Absolute/Conditional Discharge. Obtaining an “absolute discharge” or a “conditional discharge” from the court either after pleading guilty to an offence or being found guilty of an offence after a trial.
- Alternative Dispositions. Resolving your case by way of an alternative disposition (e.g., a peace bond or a guilty plea to a non-criminal offence)
1. Alternative Measures/Diversion
The court system offers an accused person only two choices: (1) plead guilty and be sentenced; or (2) plead not guilty and be tried.
The Criminal Code, however, permits the Crown to “divert” an accused person out of the court system and into an approved program of “alternative measures” – hence the term “diversion” is used interchangeably with the term “alternative measures” – provided the accused is prepared to admit that he committed the offence. Alternative measures programs are rooted in the concept that in some cases alternative measures can appropriately and effectively address the harm done to the community by an offender and at the same time allow an offender to accept responsibility for criminal conduct and be rehabilitated. In other words, it is not always necessary to convict an offender to serve the interests of society.
Generally, alternative measures can be used to resolve a wide variety of offences. Some notable exceptions, not surprisingly, are offences such as murder, attempted murder, aggravated assault, criminal negligence causing death, and firearms offences carrying minimum mandatory sentences. Ultimately, the decision to refer an accused person to an alternative measures program is entirely within the Crown’s discretion. The accused does not have a right to have his or her case referred to alternative measures, and is wise to rely on good criminal defence counsel to put forth the strongest case for using alternative measures.
To participate in an alternative measures program, an accused person must admit to having committed the alleged offence, and agree to complete whatever program is recommended by a supervising probation officer. The accused will succeed in avoiding a criminal record for the offence upon successful completion of the recommended program.
What are the actual “alternative measures”?
Alternative measures may include one or more of the following:
- paying restitution to victims of the offender’s crime to compensate the victims for losses (e.g. damage to property or the cost of replacing stolen property)
- performing community service
- writing an apology to victims
- participating in counselling programs or courses.
Upon an offender’s completion of an alternative measures program, the Crown will stay all charges, effectively ending the prosecution, and offender will succeed in avoiding a criminal record for the offences charged.
2. Discharges
Where an accused has pleaded guilty to an offence or had a trial and been found guilty, he or she can avoid a criminal record if the sentencing judge orders either an absolute or conditional discharge in respect of the offence.
Effect of Discharge
Under Section 730(3) of the Criminal Code, an offender is deemed not to have been convicted of an offence if he or she has been discharged of that offence. A discharge leaves no record of conviction, and an offender can legally and legitimately say to an employer or anyone else that he or she has not been convicted of the offence.
Revocabilty of Discharge
An absolute discharge is irrevocable and effective immediately, whereas a conditional discharge can be revoked. The conditions of a conditional discharge are set out in a probation order and in force for the duration of the order. When the discharge is ordered, the judge specifies the duration of the period of probation and the conditions attached to it. If the offender breaches any of the conditions, the court can later revoke the discharge.
Eligibility for Discharge
An offender is not eligible for a discharge, either absolute or conditional, for an offence punishable by a minimum sentence or by a maximum sentence of 14 years or life.
These are some offences for which an offender cannot receive a discharge:
- robbery (maximum sentence of life imprisonment)
- breaking and entering (maximum sentence of life imprisonment)
- aggravated assault (maximum sentence of 14 years)
- sexual interference, sexual assault of an underage person (minimum sentences of 90 days or 6 months apply)
- sexual assault by indictment (minimum sentence applies)
Where a discharge is legally available, a judge may order one if the following requirements are met:
(a) it is in the accused’s best interest to be discharged; and
(b) it is not contrary to the public interest to grant a discharge
It is not usually difficult to persuade a judge that it is in a person’s best interest to be discharged. Avoiding a criminal record is in practically everyone’s best interest. The more difficult requirement is persuading the judge it is not contrary to the public interest to grant a discharge. Generally, the more serious the offence the less likely a discharge will be ordered. Courts are concerned about the message that might be sent by discharging offenders of more serious offences, and are more likely to impose more onerous sentences for serious offences.
A discharge is not normally given to someone who either already has a criminal record or is not otherwise of good character, and is rarely given to someone who has previously received a discharge.
3. Alternative Dispositions
Sometimes the Crown can be persuaded to resolve charges by letting an accused person plead guilty to a non-criminal offence or imposing restrictions on an offender that do not involve a criminal conviction. In spousal assault cases, for example, the Crown will sometimes let an accused person enter into a peace bond under Section 810 of the Criminal Code, which does not involve pleading guilty to any offence and does not result in a record of conviction.
For impaired driving or dangerous driving offences, the Crown will sometimes stay criminal charges and let the accused plead guilty to an offence under the Motor Vehicle Act such as driving without due care and attention contrary to Section 144(1).
In cases where a person has been charged with careless storage of a firearm, the Crown will sometimes stay the criminal charge if the accused agrees to a firearms prohibition order under Section 111 of the Criminal Code, which does not result in a record of conviction.
Whether one of these alternative dispositions is ultimately used to resolve criminal charges depends on the unique circumstances of each case and the ability of defence counsel to persuade Crown that an alternative disposition is fair and in the public interest.
Often one of the first questions I’m asked by a new client is, “Will I go to jail if I’m convicted?” As you would expect, this is the source of much angst.
Thankfully, the answer is usually no if the person does not have a criminal record and has not committed either a serious offence or one which carries a minimum sentence.
Unfortunately, not having a criminal record does not give you a “get out of jail free” card in the latter two cases.
Serious Offences
There is no defined class of “serious offences” in the Criminal Code; however, there are a number of offences for which judges invariably impose jail sentences. These offences include, not surprisingly, murder, manslaughter, kidnapping, aggravated sexual assault, dangerous driving causing death, impaired driving causing death, and aggravated assault. Except in exceptional circumstances, offences such as extortion, robbery, drug trafficking, assault causing bodily harm, breaking and entering, and theft from an employer are also punished with jail sentences.
Minimum Sentence Offences
Where a minimum mandatory sentence is prescribed by law, jail cannot be avoided.
Offences which carry a minimum sentence include:
(a) possession of a loaded restricted or prohibited firearm (3 years if the Crown proceeds by indictment)
(b) use of a firearm or imitation firearm in the commission of an offence (1 year consecutive to the main offence)
(c) sexual assault of a person under 16 (90 days or 1 year)
(d) sexual interference (90 days or 1 year)
(e) invitation to touch (90 days or 1 year)
(f) production of marijuana, 6 to 200 plants (6 months if the purpose of production is trafficking)
House Arrest – Conditional Sentence Order (CSO)
The Criminal Code used to permit judges to sentence offenders to conditional sentences (commonly referred to as “CSOs”) where the appropriate sentence for the offence was less than two years imprisonment. In theory, a CSO was available for any offence other than murder, and allowed an offender to serve his or her sentence in the community, typically at home under house arrest conditions.
The CSO was introduced to the Criminal Code as a sentencing option as a result of the government’s acknowledgment that jail sentences should be used sparingly. The only other prerequisites for a CSO were satisfying the court that a CSO:
(a) would not endanger the safety of the public; and
(b) would be consistent with the fundamental principles of sentencing (general deterrence, specific deterrence, denunciation, rehabilitation, etc.)
Since the introduction of the CSO in the nineties, the availability of CSOs has been drastically reduced. This is largely a function of the Conservative government’s efforts to score cheap political points with voters, particularly the right wing of their own party, by appearing to be “tough on crime”, despite compelling evidence that incarceration is generally not productive.
Today, a CSO cannot be ordered for any offence:
- punishable by a minimum jail sentence
- prosecuted by way of indictment and punishable by a maximum jail term of 14 years or more
- prosecuted by way of indictment and punishable by a maximum jail term of 10 years or more if the offence resulted in bodily harm, involved the import, export, trafficking or production of drugs, or involved the use of a weapon
Further, a CSO cannot be ordered for any of the following offences if they are prosecuted by indictment:
- prison breach (s. 144)
- criminal harassment (s. 264)
- sexual assault (s. 271)
- kidnapping (s. 179.02)
- trafficking in persons (2. 279.02)
- abduction of a person under 14 (s. 281)
- motor vehicle theft (s. 333.1)
- theft over $5,000 (paragraph 334(a))
- breaking and entering a place other than a dwelling house (paragraph 348(1)(e))
- being unlawfully in a dwelling house (s. 349)
- arson for fraudulent purpose (s. 435)
There’s an old saying, “A man who is his own lawyer has a fool for a client.” I agree, and point out that the same goes for lawyers who try to represent themselves. I am not saying you should never represent yourself, as there are rare circumstances where what is at stake does not justify the cost. Those circumstances, however, are the exception that proves the rule.
In the interests of full disclosure, I must remind you that I am, of course, a criminal defence lawyer. Despite that obvious conflict of interest, I’ll offer you four reasons for my opinion and let you judge for yourself.
1. You won’t have the benefit of legal advice.
Unfortunately, criminal law and criminal proceedings can be complicated, not just for non-lawyers but also for lawyers who aren’t familiar with criminal law. If you decide to represent yourself, you forego the benefit of expert legal advice, and that advice is more valuable than you may realize. Are you familiar with the details of criminal procedure, rules of court, laws of evidence, and courtroom practice? Are you acquainted with the judges you may appear in front of? Do you know what the Crown has to prove to convict you? Do you know whether the Crown can convict you with the evidence it has? Do you know what technical and other defences might be available to you? Do you know if your rights under the Charter of Rights and Freedoms were violated, and if so, what you can do about it? Do you appreciate everything that is at stake for you?
If you are not a lawyer but have diligently searched the internet for information about criminal law and the specific charges you are facing, do you still think it is a good idea to be your own lawyer? Put aside your charges for a moment and consider a different context. What if you needed a filling in one of your teeth and researched the dental procedure online? Assuming you had the tools, would you be your own dentist? Do you think that your knowledge and experience would be comparable to a dentist’s after a few hours of research and study?
If the answer to one or more of these questions is no, you may wish to reconsider the cost of going it alone.
2. It is practically impossible to be objective about your own case.
Let’s assume for the moment you have all the necessary legal knowledge to defend yourself. In fact, let’s assume you’re an excellent criminal defence lawyer yourself. Does that mean you should represent yourself in your own criminal case? In my opinion, the answer is still no. If for no other reason, representing yourself is not prudent because it is difficult, if not impossible, to be objective about your own case. Amid the stress and angst of being an accused person in the criminal justice system, it is alot to expect that you can suppress the strong emotions that you are naturally experiencing about the process and the parties involved.
For example, having been accused of assaulting your spouse, can you be objective about the quality of her evidence and the impression her evidence will make on the judge? More importantly, can you weigh the Crown’s case objectively against your defence, especially if you are likely to testify in your own defence?
I can tell you from my experience as a defence lawyer that some clients find it difficult to be objective about their case even having had the benefit of legal advice. Some clients are convinced that certain strategies and tactics are in their best interests despite the fact it is obvious to any competent criminal lawyer that the clients are committing legal suicide.
Why risk undermining your own cause by depriving yourself of objective and professional representation?
3. You are unlikely to be as effective an advocate for yourself as a skilled criminal lawyer.
In the eyes of others, in particular prosecutors and judges, what you say in and out of the courtroom about yourself and your own case is not as credible as what a criminal defence lawyer says. The words that are spoken might be the same, but the weight attached to them will be different. Lawyers are licensed and well-trained professionals, not to mention officers of the court. They are bound by express professional standards and must conduct themselves in accordance with well-established ethical principles. Both judges and prosecutors know that when a lawyer speaks for you, he or she does so bearing in mind their professional obligations. A lawyer cannot knowingly misstate the facts or the law, and a lawyer has a professional reputation to protect. Your case is unlikely to be the lawyer’s last. Therefore, when your lawyer speaks for you, others are more likely to listen not only because the lawyer might be more eloquent or knowledgeable, but also because the lawyer has to be careful about what he or she says. What he or she says therefore ends up carrying more weight.
4. The criminal justice system is not designed for you to represent yourself.
Whether we like it or not, the Canadian criminal justice system and British Columbia criminal courts are not designed to accommodate accused persons who represent themselves. Everyone from judges to prosecutors is accustomed to interacting with accused persons through their lawyers. When the accused person does not have a lawyer, the processing of that person’s case becomes more difficult for everyone involved, including the accused.
There are a few reasons for this. Let’s start with prosecutors. No prosecutor wishes to have direct contact with an accused if contact can be avoided. Any time a prosecutor interacts with an accused person, there is a risk that the accused will say something incriminating that will require the prosecutor to testify in court about the statement made by the accused. There is also a risk that the accused will misconstrue something the prosecutor says as legal advice, which a prosecutor cannot provide to any accused person, or that the accused will misconstrue something the prosecutor says as a plea offer or concession on behalf of the Crown. If any of these things happens, court time is required to sort things out, and the accused may suffer consequences he did not anticipate. The involvement of defence lawyers expedites and smooths the process, as prosecutors and defence lawyers rely on professional conventions in their dealings with each other and can speak to the important issues with comfort and ease. They may not agree on things, but they can certainly discuss them freely and either agree on parameters for a trial or work out a plea bargain for a guilty plea. The self-represented person does not have this luxury in his dealings with prosecutors.
A self-represented accused also poses challenges for judges. Contrary to the public perception of judges as all-knowing legal experts, judges actually rely on lawyers to confirm the state of the law as it applies to the accused’s case, and to protect the interests of the accused. In the absence of a criminal defence lawyer, the court process is lopsided. The voice of the accused is weak compared to the voice of the Crown, which is represented by professional prosecutors. While judges and even prosecutors try to maintain balance, they cannot assume the role of defence counsel, and at best can direct the accused’s attention to matters that should be considered and strategic decisions that should be made. That still leaves the accused without any assistance in considering the matters or making decisions, assuming guidance was provided by the judge or prosecutor in the first place.
At the end of the day, you have to make your own decision about your representation. My advice to you, whatever you decide, is think twice before representing yourself, and think about what you will lose in the process if you do not have a lawyer.
In Canada the public’s understanding of the “right to remain silent” is heavily influenced by American TV shows like Law and Order and The First 48 Hours. The typical scenario plays out something like this. One or two detectives bear down on a whimpering suspect who is bombarded with questions and accusations. Within a few minutes, the suspect has had it. He “lawyers up” and the interrogation magically ends.
Unfortunately, it’s not that simple. I can’t speak to what the law is in the United States, but I can tell you one thing for sure — it doesn’t work that way in Canada, and there are recent cases from the Supreme Court of Canada to prove it.
In the simplest terms, the right to remain silent is the right not to say anything. If you are being questioned by a detective or a police officer, you don’t have to answer. If you are sitting in a room or in a police car with a police officer who is saying nothing, just sitting opposite from you, you don’t have an obligation to offer an “explanation” for anything you may or may not have done, whether you have been asked for one or not. You have a constitutional right to say nothing.
The one and only exception to that rule is if you are stopped while driving your car. You have no choice but to provide your driver’s licence and registration documentation, and confirm who you are and where you live. You don’t have to say anything else.
What may come as a surprise to you is that invoking your right to remain silent by actually telling the police you don’t want to say anything does not prevent the police from continuing to interrogate you. They can sit with a suspect for hours after he has repeatedly told them he doesn’t want to say anything, and they are free to continue asking questions or carry on a one-sided conversation.
As unusual as this might sound, it’s true. What’s more, it often ends with the suspect confessing to criminal acts after having had the good sense earlier to invoke his right to silence. A good interrogator uses sophisticated techniques to break down a suspect’s psychological inhibitions without so much as raising his voice, let alone his fist. Interrogators seldom start by getting right to the point. They carefully build trust and rapport by discussing things they may have in common with the suspect or by discussing harmless topics. At other times, they appeal to the suspect’s sense of decency, religious inclinations and values to coax him to say something. Sometimes they say nothing, letting long periods of awkward silence pass, hoping the suspect will not be able to stand the silence and awkwardness of the moment and start talking.
Don’t help the police convict you. Invoke your right to remain silent and stand by it. There is a time and a place for everything. If you have a story to tell, your lawyer can tell you how, where and when to tell it, assuming you ever need to tell it at all! After all, you are presumed innocent until proven guilty. It is the state’s responsibility to prove you are guilty, not your responsibility to prove you are innocent.
