Criminal

Marijuana

Under the Controlled Drugs and Substances Act, possession of Marijuana is a criminal offense, and you should talk to a lawyer even if the marijuana is not yours. This law has been under debate and may change so that it can be possible to avoid conviction for possession of small quantities. If you are found with a larger quantity and/or a number of smaller packages, you could be charged with possession for the purpose of trafficking.

For you to be convicted, the courts has to prove you knew about the presence of the marijuana and it was found either on you, such as in your pocket or purse or in an area under your control such as your bedroom or car. If these two conditions are proved, you may be convicted.

The prosecuting attorney, also called the Crown Counsel, can prove these two conditions by calling witnesses such as the arresting police officer. You have the opportunity to ask questions after the Crown asks questions. When the Crown is done with their witnesses, it will be your turn to present your case in your defense. You can tell the court your side of the story and call your own witnesses in support as well. When a particular witness in your defense is done, the prosecuting attorney will be able to ask them or you questions as well. Afterwards, both you and the prosecuting attorney will summarize your points, and the court will make a decision.

If you are found guilty or convicted, you may get a criminal record. For a first time offense, the maximum penalty is a fine of $1000 or 6 months in jail or both; however, it is usually much less. You may also get a discharge (see our section on Sentences and Probation)

Shoplifting

If you are caught leaving a store with something that doesn't belong to you and that you haven't paid for, you maybe be arrested and charged with shoplifting as it is a form of theft. You might be taken to the police station and searched, fingerprinted, and photographed. You will be given a court date.

For you to be convicted, the court has to prove that it was you who did the crime and that you intended to steal the item or tried to steal the item. The prosecuting attorney, also called the Crown Counsel, can prove these two conditions by calling witnesses such as the store security officer. You have the opportunity to ask questions after the Crown asks questions. When the Crown is done with their witnesses, it will be your turn to present your case in your defense. You can tell the court the court your side of the story such as you were distracted and forgot you had it in your hand. You can call your own witnesses in support as well. When a particular witness in your defense is done, the prosecuting attorney will be able to ask him or her or you questions as well. Afterwards, both you and the prosecuting attorney will summarize your points, and the court will make a decision.

If the court finds you guilty, the penalties could be probation, absolute or conditional discharge, diversion, restitution, a fine, a conditional sentence or a jail term, or a combination of one or more of the above, and you will have a criminal record. The maximum fine is $2000 for an item worth less than $5000 and jail time is 6 months. You will have to pay a victim surcharge which is 15% of the fine or $50 or a higher amount depending on the judge's orders. If the item is worth more than $5000, the penalties are higher. If its your first offense, the fine might be several hundred dollars, and you may be banned from entering that particular store again for up to a year or more. See the section on Sentences and Probation for more information.

Stalking

According to Section 264 of the Criminal Code of Canada, Stalking is considered criminal harassment. If someone is following you repeatedly from one place to the next, if he or she is trying to communicate with you or someone you know either directly or indirectly, watching you or your work or your home or wherever you are, if he or she is threatening you in any way, then he or she can be considered to be stalking you. A stalker doesn't have to damage or hurt anyone but it can affect someone psychologically and emotionally as well as it can create fear in the you, the victim.

Once a person knows that his or her conduct is not welcome, if he or she continues, his or her conduct may be criminal harassment and may result in a criminal conviction. You should report stalking or harassment to the police. It is a good idea to keep a record or journal or make notes of dates and times and what happened or what was said. These notes could be used by the prosecuting attorney or Crown Counsel when building a case. The maximum penalty for stalking is 10 years in jail or for less serious cases, a fine and or 6 months in jail. The court will normally order the person convicted to have no contact with you directly or indirectly and to stay away from your home and work. Sometimes the court will order counselling as well.

If you don't want to call the police to report a stalker, you can take action by filing for a restraining order in civil court. See Civil Litigation for more information.

Pleading Guilty

Think carefully before pleading guilty to a charge. A conviction can affect and change the rest of your life. If the charge is less serious, you can plead guilty to get it over with but keep in mind that you are considered innocent and the Crown Counsel has to prove you are guilty. There may be things or circumstances you don't know about that make you innocent even if you did commit a crime. If you already have a record, you face more serious penalties. It is best to consult a lawyer for criminal charges before you go to court.

If you still wish to plead guilty, on the day of court, let the Crown know you wish to do so. You might want to find out what penalties they will be asking the court for as well. When the court clerk calls your name, go to the front and say you wish to plead guilty. Once the clerk has read the charge, the judge will ask how you plead and you then tell the judge "guilty, Your Honour"

The prosecutor will talk about the case and usually read the police report. Listen carefully in case you don't agree with something. The judge may ask you some questions such as you age or about your job or income or plans for the future. Tell the judge if you don't understand something, and let the court know how you feel about the incident. It is better that you talk a bit then don't say anything. After all this, the judge will sentence you or give you a penalty depending on the information. If you are fined, ask for a time to pay just in case you don't have the money available.

Defending Yourself

You can defend yourself against a criminal charge; however, it should only be as a last resort. It is best to consult with a lawyer or with Legal Aid.

If you still choose to defend yourself, there are a few things you need to know. The law assumes you are innocent till proven guilty; it's the Crown's job to try to prove you are guilty, and then the judge has to decide whether the case against you proves you are guilty without a doubt.

The trial will start with the formal charge being read. The judge will ask how you plead. If you don't answer, it is automatically entered as "not guilty". The prosecutor will begin building a case against you by calling witnesses who will testify about what they saw or heard. After each witness, you will have the chance to ask questions as well. You need to try to show they are lying or they are wrong. Once the prosecutor is done calling witnesses, you will have the chance to make a "no evidence motion" if the prosecutor doesn't have enough of a case. If the judge agrees, then the case and the charges against you will be dismissed.

If you don't make a "no evidence motion" or if the judge overrules it then it is your turn to produce witnesses and evidence in your defense. You can choose to testify yourself as well however, if you don't' testify then what you say in your own defense cannot be considered.

After all the witnesses have testified, both sides have the opportunity to summarize the case (called Submissions). The prosecutor will say why you are guilty and you say why you are not. If there is reasonable doubt, the judge cannot convict you. You can be convicted or acquitted. If you are convicted, the judge will sentence you right then or postpone sentencing to a later date. See Sentences and Probation for more information. The judge will ask you questions such as your age, marital status, employment status and your income level and future plans before sentencing you so have the information ready when asked. You can get reference letters from your employer or doctor or family friends that may be taken into consideration as well before sentence is handed down.

Sentencing

There are many different ways a judge can sentence or punish you for committing a crime. Depending on the offense, if its your first conviction, you could receive a discharge, probation, diversion or conditional sentence.

A discharge is usually to give first offenders another chance. You need to convince the judge during sentencing that this is appropriate for your circumstances. There are two kinds of discharges, conditional and absolute. Conditional means you are on probation for up to three years. Absolute mean you won't be punished unless you are convicted a second time. The judge will consider your character and the minimum and maximum penalty for the offense. If there is a minimum penalty, you can't be discharged. If the maximum is more than 14 years, again you won't get a discharge.

If you have still been found guilty of an offence and the sentence is suspended, you could be released on probation. Probation is a sentence that means you have to follow certain conditions for up to three years. It can be in combination with other penalties such as a fine or follow a jail term of less than 2 years. Probation may include asking that you be on your best behaviour, report to a probation officer and keep the peace, maybe avoid certain people, avoid drugs and alcohol, go to counseling, pay damages to the victim, do some sort of community service work or any combination of the above. You can be charged with a breach which usually results in a jail term and/or the original sentence for your crime if you don't follow your probation.

A diversion means that your case is taken outside of the regular legal system. If you admit your mistake, its your first offence, and show you are willing to participate in the program you may be sentenced to participate in counseling or writing a letter of apology to the victim, pay restitution for the damage you caused, do community service or a combination of the above. If you finish this diversion successfully, you won't have a criminal conviction or record.

A conditional sentence can be given to you if the penalty for the offense is less than 2 years and no minimum jail term. The sentence is served in the community instead. Conditional sentences are used if you are not a danger to society and usually follow the same conditions as probation and can include curfews as well. If you breach your conditions, you are subject to the original sentence for your crime.

The judge can also make a "no go order" that prohibits you from contacting a person or going to a particular place as well as possessing firearms and other weapons.

Pardons

If you have a criminal record and have finished your sentence, you can apply for a pardon to show you've obeyed the law. The National Parole Board keeps separate records for those who have received a pardon apart from those who have not. This means that no one under Federal law can give out information about your record without getting permission from the Canadian Minister for Public Safety and Emergency Preparedness; however, information can still be given out by other people or organizations not regulated by Federal law.

You need to wait a certain period of time before applying for a pardon. This time period depends on your conviction. You need to wait 3 years for a summary conviction and up to 5 years for an indictable conviction and this time starts only when you have finished your sentence and probation. You don't need to apply for a pardon if you received a discharge as it is automatically removed one year after an absolute discharge and three years after a conditional discharge. You need to apply to the National Parole Board, and there will be a $50 fee plus other costs. You will be given an information package that explains the process. For more information, check their website www.npb-cnlc.gc.ca/pardons/servic_e.htm or call 1-800-874-2652.