Pro Bono Law Alberta Criminal Law Cheat Sheets

Transcription

1 Pro Bono Law Alberta Criminal Law Cheat Sheets Topic Page Introduction 1. Relevant Legislation 3 2. Introduction to Criminal Code Offenses: Actus Reus and Mens Rea 3 3. The Fault Requirement 4 4. Criminal Code Offense or Regulatory Offense 6 5. Basic Information About Defenses 7 6. Basic Overview of the Criminal Court Procedure 8 7. Appearance Notice, Fingerprinting, Disclosure, Failure to Appear 9 8. What Rights Does a Person Have When Under Arrest? What are the Different Types of Offenses? 10 Alternatives to the Formal Court Process 10. What is Early Case Resolution? Is it Appropriate for my Client? Is my Client Eligible for the Alternative Measures Program? 11 What Happens at Court 12. What Should I Tell my Client About Docket Court (First Appearance)? General Information About What Happens At Court? General Information About Pleading Not Guilty General Information About Pleading Guilty 15 Sentencing 16. General Information About Sentencing 16 Information About Specific Charges, Available Defenses, Sentences 17. A List of Common Offenses Possession of Controlled Drugs and Substances Theft Fraud Possession of Stolen Property Domestic Abuse Prostitution 31 Last Updated 10/8/2013 Page 1 of 47 PBLA Criminal Law Cheat Sheets

2 24. Public Indecency Assault Impaired Driving (aka driving under the influence DUI ) What is the Alberta Administrative License Suspension Program? What is the Immediate Roadside Suspension (IRS) program? License Suspensions (General Information) Driving While Unauthorized 44 Pardons 31. What Should I tell my Client About Pardons (now called record suspensions) 46 Last Updated 10/8/2013 Page 2 of 47 PBLA Criminal Law Cheat Sheets

3 Pro Bono Law Alberta Criminal Law Cheat Sheets Relevant Legislation Legislation: Criminal Code of Canada Controlled Drugs and Substances Act Traffic Safety Act Youth Criminal Justice Act Youth Justice Act Protection of Sexually Exploited Children Act Protection Against Family Violence Act Victims of Crime Act Introduction to Criminal Code Offenses: Actus Reus & Mens Rea- Criminal Code offenses consist of 2 parts: Actus reus the commission of the act or the omission of the act; and, Mens rea fault requirement (may be an objective or subjective standard) How do I know if the fault requirement is objective or subjective? Default is subjective (intent or recklessness) o Hint: language like intentionally, willfully, knowingly indicate a subjective fault requirement o Hint: language like negligently or reasonably indicates an objective fault requirement Last Updated 10/8/2013 Page 3 of 47 PBLA Criminal Law Cheat Sheets

4 The Fault Requirement- What if the fault Requirement is Subjective? There are 2 categories of subjective fault: [1] Intention / Knowledge (highest level of fault) Intention requires knowledge Test for intention: if you perform an act knowing the consequences that will (with a degree of certainty) flow from it, then you intend those consequences or cause the consequences on purpose. [2] Recklessness / Willful blindness. Recklessness subjective advertence to the prohibited risk, knowledge of a danger or risk and persistence in a course of conduct that creates a risk that the prohibited result will occur. o (Hint: Where there is no word to give a clue about the fault element, recklessness is the default fault requirement). Recklessness when accused knows that there was a risk and the result will be illegal but you take the risk anyway Willful Blindness person has become aware of a need to inquire, and declines to make the inquiry because he or she does not wish to know the truth and prefers to remain ignorant. o It is deliberately failing to inquire when you know that there is a need to inquire (closing one s mind to the truth) o Test for willful blindness if party has suspicion aroused but then deliberately omits to make further inquiries because he wishes to remain ignorant, he is deemed to have knowledge and is willfully blind (i.e. willful blindness can satisfy the requirement of knowledge in particular offenses) Willful Blindness Requires awareness of the risk An available means to clarify the matter Person does not wish to clarify the matter b/c he does not want to know Proceeds regardless of the aforementioned circumstances You must be willfully blind to the specific offense Continued on next page Last Updated 10/8/2013 Page 4 of 47 PBLA Criminal Law Cheat Sheets

5 What if the fault standard is objective? Criminal code provisions w/ objective fault: 219, 220, 221, 222, 234, 246 Hint: language like negligently or reasonably indicates an objective fault requirement Whether a reasonable person in the accused s position would have had the required guilty knowledge or would have acted differently? o TEST marked departure test: reasonableness AND proof of conduct which is a marked and significant departure from the standard which could be expected of a reasonable person in the accused s circumstances will justify a conviction. Marked departure from the reasonable person Last Updated 10/8/2013 Page 5 of 47 PBLA Criminal Law Cheat Sheets

6 Criminal Code Offenses or Regulatory Offense? Are you dealing with a Criminal Code offense or a regulatory offense? The Crown does not have to prove the existence of mens rea for regulatory offenses. For strict liability (SL) regulatory offense If accused committed the actus reus then guilty; there are two potential defenses - due diligence, or lack of negligence based on reasonable mistake of fact. For absolute liability (AL) regulatory offenses If the accused committed the actus reus then guilty; there is no mens rea defense. o That said, circumstances that would render an act involuntary (e.g. reflex, automatism) may provide a defence. How do I know if a regulatory offense is a strict or absolute liability offense? The language will indicate if it is an absolute liability offense (very clear language is required indicating that if the act occurred the person is guilty) If there is no clear language indicating an absolute liability offense the default is strict liability (defense is that of due diligence) What does the Crown need to prove for my client to be found guilty of a strict liability offense? For a regulatory offense all the crown has to do is prove is the actus. Once the act is proved there is a reverse onus is applied. Are there any defenses available? The only defenses for a strict liability offense are due diligence or lack of negligence based on reasonable mistake of fact. If you cannot prove due diligence then it may be possible to rely on a defense of officially induced error. When is the defense of officially induced error available? It must be a regulatory offense The defense may be applicable if a person has reasonably relied on an erroneous legal opinion or advice from an official responsible for the enforcement of a particular law. Test for the defense of officially induced error for strict liability offenses is: o [1] error of law or law/facts o [2] person considered the legal consequences of actions o [3] advice came from appropriate official o [4] advice was reasonable o [5] advice was erroneous o [6] person relied on advice in committing the act. Last Updated 10/8/2013 Page 6 of 47 PBLA Criminal Law Cheat Sheets

7 Basic Information About Defenses What if my client did not know he/she was breaking the law? Mistake of law S. 19 Criminal Code- generally mistake of fact is not a defense. However, for strict liability offenses if a person reasonably relied on an erroneous legal opinion or advice from an official responsible for the enforcement of a particular law there might be a defense of officially induced error. Potential exceptions: officially induced error or the law was not known (not published) or color of right What is the defense color of right? Defense to Mistake of Law This defense goes to the frame of mind of the accused person (i.e. intent to steal) Color of right is a potential defense when a person beliefs he has a legal right to do something Color of right may be an exception to s. 19 Criminal Code if there is an honest belief in a state of fact which, if the facts actually exists, would at law justify or excuse the act. Potential exceptions = color of right (belief in legal right to the property)- color of right can be an exception to s. 19 CCC- if there is an honest belief in a state of fact which, if the facts actually exists, would at law justify or excuse the act. Legislation: For More Info: s. 19 Criminal Code of Canada Information is available under other sections of the PBLA Cheat Sheets (defenses to specific charges are discussed under those sections) Last Updated 10/8/2013 Page 7 of 47 PBLA Criminal Law Cheat Sheets

8 Basic Overview of the Criminal Court Procedure- First Appearance Docket Court (obtain disclosure) Early Case Resolution o Crown may withdraw charges for one charge if client pleads guilty on another o Other alternative means of resolution, e.g. a peace bond o Client may be eligible for Alternative Measures Program (AMP); or, o Client may be eligible for Mental Health Diversion If the client is eligible for AMP or referred to the Mental Health Diversion program and successfully completes the program, the charge will be withdrawn and the client will not receive a criminal record. If the client is not eligible or fails to complete the program(s) the client may: o Enter a not guilty plea and at trial the client will either be: Acquitted (no criminal record) or Found guilty, convicted and sentenced (criminal record). If found guilty the client may make a discharge application (i.e. it may still be possible to avoid a public criminal record). o Enter a guilty plea and the client will be: Convicted and sentenced (criminal record). The client may make a discharge application (i.e. it may still be possible to avoid a public criminal record). For More Info: You ve Been Charged with a Crime to Know (item #1 in Guide to the Law in Alberta tabbed section of manual) Criminal Justice Process for Youth (Flow Chart) [item #2 -found in the Guide to the Law in Alberta tabbed section] Criminal Justice Process for Adults (Flow Chart) [item#3 found in the Guide to the Law in Alberta tabbed section] A Guide to the Law in Alberta Regarding: How to Do Your Own Speak to Sentence (item #5 in A Guide to the Law in Alberta tabbed section of manual) A Guide to the Law in Alberta Regarding: How to Run Your Own Trial Understanding Criminal Records (item #4 in A Guide to the Law in Alberta tabbed section of manual) Last Updated 10/8/2013 Page 8 of 47 PBLA Criminal Law Cheat Sheets

9 Appearance Notice, Fingerprinting, Disclosure & Failure to Appear What is the Information? The official charge What is an Appearance Notice (or Summons to Attend or Recognizance)? If your client has been charged with an offense he or she will have an appearance notice. What information does the Appearance Notice provide? The charge(s) When and where to appear in court. If the client is required to go to the police station for photographing and fingerprinting. Where does my client go for fingerprinting? Accused must appear for fingerprinting if directed on the Information. Failure to appear in court or report to the police station will result in a failing to appear charge (s. 145 CC) and a warrant may be issued for the client s arrest. My client has been charged with Failure to Appear and a warrant has been issued for his arrest, what should I advise my client to do? The client ought to, as soon as possible, turn himself in to the Arrest Processing Unit at the main Calgary Police Services station. Where a client turns himself in promptly, it is more likely than not that they will be released on a promise to appear The client will be fingerprinted again. Legislation: For More Info: What is disclosure? Advise your client to ask the Crown Prosecutor s office for disclosure (i.e. the evidence against your client). (It takes about 7-10 days, the client will be contacted when it is ready). If the client does not have disclosure by the time of the first appearance, the client should reserve plea (adjourn) the matter for a few weeks until disclosure has been received and reviewed. S. 145 Criminal Code of Canada You ve Been Charged with a Crime to Know (item #1 in Guide to the Law in Alberta tabbed section of manual) Last Updated 10/8/2013 Page 9 of 47 PBLA Criminal Law Cheat Sheets

10 What rights does a person have when under arrest?-- When someone is arrested, the police must: o Inform them of the reason for the arrest o Inform them of their right to call a lawyer o Inform them that they can get free legal advice (any time, day or night) o Give them the phone number for free legal advice o Give them reasonable privacy and access to a phone to call a lawyer o Give them a reasonable amount of time to contact and talk to a lawyer o Inform them that they can get duty counsel any time (duty counsel is a lawyer who will talk on their behalf in court) The police must not force someone to answer questions before they talk to a lawyer if they have asked to speak to one. If they waive their right to counsel they still have the right to be silent when asked questions. What are the different types of offenses? 1. Summary conviction a. Heard in Provincial Court b. Less serious offences that carry a lesser penalty 2. Indictable a. More serious offenses that carry a greater penalty b. Client has the right to have a trial either before a Provincial Court judge or a Court of Queen s Bench justice with or without a jury unless it is an offense for which the Provincial Court has absolute jurisdiction 3. Dual or hybrid a. The Crown can choose whether to prosecute by summary conviction or indictment Last Updated 10/8/2013 Page 10 of 47 PBLA Criminal Law Cheat Sheets

11 What is Early Case Resolution? Is it appropriate for my client?-- Contact the Early Case Resolution Unit of the Crown Prosecutor s office before the court appearance Discuss options with the Crown prosecutor, for example: a. Client pleading guilty to a lesser charge in exchange for the withdrawal of other charges b. If there is little likelihood of a conviction seek withdrawal of the charges c. Suggest alternatives to criminal charges (counseling, restitution, alternative measures programs) For More Info: Refer to the resources in the Alternatives to the Formal Judicial Process section of manual: -Criminal Prosecutions: Early Case Resolution -Youth Programs -Criminal Prosecutions: Youth Criminal Justice Act Extrajudicial Sanctions Program Is my client eligible for the Alternative Measures Program? Program was designed for first offenses/ summary conviction offenses To be eligible client: a. must accept responsibility for his/her actions; and, b. have no criminal code convictions within the last 2 years; and, c. must not have been in Alternative Measures within the last 2 yrs The Crown Prosecutor will decide whether your client is accepted into the program or not. For More Info: Refer to the resources in the Alternatives to the Formal Judicial Process section of manual: -About Alternative Measures -What is the Alternative Measures Program? -Adult Programs (Alternative Measures) -Criminal Prosecutions: Disposition Agreements B/w the Crown and Defense -Youth Programs Last Updated 10/8/2013 Page 11 of 47 PBLA Criminal Law Cheat Sheets

12 What should I tell my client about docket court (first appearance)? Date, time, and courtroom is indicated on the Appearance Notice Client should check his /her name is correct on the docket list and the charges are properly set out. Clerk will call the clients name and the client will stand in front of the judge. Accused does not need to be present at the first appearance if it is a hybrid or summary conviction offense, if an agent appears on his behalf. If the matter is indictable, counsel must be retained and have filed a designation of counsel form with the court, in order to appear on a client s behalf. However, if the accused does not appear or has not made proper arrangements for an agent to appear on their behalf at the first appearance, the accused will be charged with failing to appear. For More Info: You ve Been Charged with a Crime to Know (item #1 in Guide to the Law in Alberta tabbed section of manual) Last Updated 10/8/2013 Page 12 of 47 PBLA Criminal Law Cheat Sheets

13 General Information About What Happens at Court What will happen at court? The charge will be read out Plead not guilty or guilty. If a person pleads guilty, she/he will probably be sentenced that day. (Or the client may adjourn the matter to obtain legal counsel) What should I tell my client about duty counsel? Your client may seek assistance from duty counsel (free of charge). Duty counsel can speak to the Crown prosecutor for your client, set a trial date, reserve your client s plea for a later date, enter a guilty plea, speak to sentence and speak to release. What will happen if my client has been charged with an indictable offense? The client can make an election i.e. choose a trial either before a Provincial Court judge or a Court of Queen s Bench justice with or without a jury unless it is an offense for which the Provincial Court has absolute jurisdiction. If the client does not have a lawyer he/she may reserve his election. If client makes an election to have the trial in the Court of Queen s Bench there will be a preliminary hearing scheduled, unless the Crown and defence agree to waive the hearing, or the Crown proceeds by direct indictment. Preliminary hearing is held in front of a Provincial Court judge to determine whether there is enough evidence to justify sending the case to trial. If there is enough evidence a trial date in the Court of Queen s Bench will be set. What will happen if my client has been charged with a summary offense? The client can plead guilty, not guilty or reserve the plea. For More Info: You ve Been Charged With a Charge to Know (item #1 in Guide to the Law in Alberta tabbed section of manual) A Guide to the Law in Alberta Regarding: How to Run Your Own Trial (item #4 in Guide to the Law in Alberta tabbed section of manual) A Guide to the Law in Alberta Regarding: How to do Your Own Speak to Sentence (item #5 in Guide to the Law in Alberta tabbed section of manual) Last Updated 10/8/2013 Page 13 of 47 PBLA Criminal Law Cheat Sheets

14 General Information About Pleading Not Guilty Plea of not guilty is entered The client will need to go to trial coordinator s counter to schedule a trial date Once the trial date is set the client receives a written notice with the time and location of the trial. The client will need to return to the courtroom to confirm the trial date with the Judge and provide copies of the written notice to the court clerk and Crown Prosecutor Innocent until proven guilty beyond a reasonable doubt. The Crown Prosecutor must prove your guilt. The Crown prosecutor must prove: a. The offence was committed b. The offence was intended c. That you are the guilty party, and the time, date and place of the offence Here is a brief outline of what happens in a criminal trial: a. Crown s case Direct examination of all Crown witnesses by Crown prosecutor Cross examination of all Crown witnesses by Defense b. Defense case First, direct examination of accused (if accused is called as a witness) and then cross examination of accused by Crown prosecutor Direct examination of defense witnesses by Defense Cross examination of witnesses by Crown prosecutor c. Closing by Defense Defense sums up first if it called evidence. You can ask for a brief adjournment to prepare closing. If Defense calls no evidence, Crown sums up first, except in the case of a Charter challenge. d. Closing by Crown e. Speak to sentence if accused is found guilty For More Info: You ve Been Charged With a Charge to Know (item #1 in Guide to the Law in Alberta tabbed section of manual) A Guide to the Law in Alberta Regarding: How to Run Your Own Trial (item #4 in Guide to the Law in Alberta tabbed section of manual) Last Updated 10/8/2013 Page 14 of 47 PBLA Criminal Law Cheat Sheets

15 General Information About Pleading Guilty My client wants to plead guilty, does he/she need to set a disposition date? In Calgary and Edmonton If your client wants to plead guilty he/she should set a disposition date at the case management office. Once a disposition date has been set the clerk will provide the client with 3 copies of the notice. The client must return to the courtroom to confirm the proposed disposition date and provide a copy to the Crown Prosecutor and Court Clerk. Outside Calgary and Edmonton most courts in Alberta do not set special disposition times and will hear guilty pleas during morning docket. What should my client expect at court? A plea of guilty is entered The judge canvass s. 606(1.1) of the CCC (i.e. ensure your client is pleading guilty voluntarily and understands that he is giving up the right to have a trial). The Crown prosecutor will read the particulars of the offense Your client should listen carefully to these facts and only plead guilty if he agrees with the facts. If the client has a criminal record the Crown prosecutor should show the client a copy of the record. The client should tell the judge immediately if there are any mistakes on the record. The criminal record will be considered in sentencing, especially if the record is related. Before sentencing the client will have a chance to make submissions to the judge (speak to sentence) What should my client talk about during the speak to sentence? This is your client s opportunity to make submissions to the judge about his/her circumstances and to explain any mitigating factors (illness, necessity, personal difficulties). Your client may want to discuss any corrective measures he/she has taken (attending counseling, AADAC etc). There is no obligation to speak, and your client may not wish to if you (defence counsel) have already made submissions on his/her behalf. For More Info: You ve Been Charged With a Charge to Know (item #1 in Guide to the Law in Alberta tabbed section of manual) A Guide to the Law in Alberta Regarding: How to do Your Own Speak to Sentence (item #5 in Guide to the Law in Alberta tabbed section of manual) Refer to section of manual titled Alternative Measures Last Updated 10/8/2013 Page 15 of 47 PBLA Criminal Law Cheat Sheets

16 General Information About Sentencing Sentencing: Sentencing is dependent upon many factors (seriousness of the crime, whether it is a first offense or not, mitigating factors, whether the offense is summary or indictable etc). Possible sentences are listed below. Fines Probation orders Imprisonment/jail time Restitution (stand-alone or part of probation or discharge) Discharge (absolute / conditional) Community service Conditional sentence Alternative Measures Program Victim Offender Mediation What if my client doesn t have money to pay the fine? If the fine is not paid a warrant will be issued for the client s arrest. If client does not have enough money to pay the fine immediately he/she may request Time to Pay. The Fine Options Program will allow your client to work off your fine through community service. What will happen if my client does not comply with the conditions of a probation order? For a specific period of time your client must meet certain conditions (i.e. the conditions may include counseling, substance abuse treatment, community service hours and a requirement to check in with a probation officer). If the conditions are not met the client will be charged with Breach of Probation, or may be re-sentenced on the original offence. What if my client is sentenced to jail? If the offense is serious or the client s criminal record is long- the client should be prepared to be taken from the courtroom directly to jail. It is sometimes possible to serve time intermittently depending on the circumstances. Intermittent sentences must be less than 90 days. If sentenced to jail for less than 2 years the judge has the option of letting you serve your time in the community under certain conditions. Certain offences are ineligible for an offender to serve time in the community though. Last Updated 10/8/2013 Page 16 of 47 PBLA Criminal Law Cheat Sheets

17 What should my client know about restitution? Your client may have to pay back the victim of the offence for either the items stolen or the damage done. If restitution is made a condition of a probation order, or a conditional discharge, or a conditional sentence order, then failure to make restitution by the date in the order will result in a breach of the order, which then has criminal consequences. If restitution is made as a stand alone compensation order, then it is filed in the Court of QB as a civil judgment. Can my client serve time in the community instead of jail? If sentenced to jail for less than 2 years the judge has the option of letting you serve your time in the community under certain conditions o No minimum period of incarceration for the offence o Court satisfied that community safety would not be compromised o Objectives of deterrence and denunciation are still achieved What are the 2 types of discharges? Conditional discharge Absolute discharge What is a conditional discharge? The discharge is based on certain conditions which must be met (counseling, community service etc). The conditions are in a probation order and if they are not met the discharge will be revoked and the conviction entered (i.e. client will have a criminal record) If the conditions are met the discharge will become absolute (i.e. client will not have a criminal record) What is an absolute discharge? If an individual is granted an absolute discharge they have admitted guilt but there is no conviction and no further obligation to fulfill. Does not appear on your permanent criminal record Will my client need to do community service? Often given as a part of a probation order or a conditional discharge. What is a conditional sentence? Allows the client to live in the community under the supervision of a probation officer and with certain conditions. If your client was sentenced to less than 2 years in jail it may be possible to serve a conditional sentence instead of going to jail. Last Updated 10/8/2013 Page 17 of 47 PBLA Criminal Law Cheat Sheets

18 What is the Alternative Measures Program? For minor types of offenses / first offenses AMP is for individuals charged with a summary conviction offense of assault, theft under, possession under, obtaining by false pretenses, fraud, impersonation with intent, property related offenses, false fire alarms and mischief among other offenses. If a client is approved for the Alternative Measures Program then the charges against the client will be withdrawn if the client fulfills the required conditions/actions (typically alternative measures include things like counseling, apologizing to the victim or community service work). Approximately 3 months to complete the requirements, after which the client must return to court and the charge(s) will be withdrawn. What is Victim Offender Mediation? Charges against the client may be withdrawn by the Crown if the accused participates in Victim Offender Mediation (VOM). Typically for charges that arise out of situations between 2 people who know each other. Participation must be approved by the Crown Prosecutor What is a victim surcharge? If your client is found guilty he will be charged a victims surcharge (15% of any fine imposed). If no fine is imposed, it is $50 where the offense is punishable by summary conviction and $100 where the offense is punishable by indictment. Legislation: s. 730 Conditional and Absolute Discharges s. 731 Making of Probation Order s. 734 Power of court to impose a fine s. 736(1) Fine Option Program s. 738 Restitution to Victims of Offenses s. 742 Conditional Sentence (of Imprisonment) s. 743 Imprisonment s. 737 Victim Surcharge For More Info: Refer to the resources in the Alternatives to the Formal Judicial Process section of manual: -About Alternative Measures -What is the Alternative Measures Program? -Criminal Prosecutions: Adult Alternative Measures Program -Criminal Prosecutions: Early Case Resolution -Criminal Prosecutions: Dispositions Agreement B/w the Crown and Defense Youth Programs -Criminal Prosecutions: Youth Criminal Justice Act Extrajudicial Sanctions Last Updated 10/8/2013 Page 18 of 47 PBLA Criminal Law Cheat Sheets

19 Program -Calgary Diversion Service Last Updated 10/8/2013 Page 19 of 47 PBLA Criminal Law Cheat Sheets

20 Common Offenses Assault assault s. 265 assault with a weapon or causing bodily harm s. 267 aggravated assault s. 268 sexual assault s. 271 aggravated sexual assault s. 273 uttering threats s Impaired Driving and Related impaired driving s. 253(a)(b) refusal to provide a breath sample s. 254(5) impaired driving causing bodily harm s. 255(2) impaired driving causing death s. 255(3) dangerous operation of motor vehicles, vessels and aircraft s. 249 Theft, Fraud possession of stolen property s. 354 theft (defined s. 322) punishment for theft under $5000 s. 334(b) punishment for theft over $5000 s. 334(a) fraud (defined in s. 380) fraud under $5000 s. 380(b) fraud over $5000 s. 380(a) public mischief s. 140 Breach of Probation/ Failure to Appear failure to appear for a court date or fingerprinting s. 145(2) failure to comply with probation order s Drugs drug offences (see Controlled Drugs and Substances Act) Prostitution procuring s. 212 living off the avails of prostitution of person under 18 yrs s. 212(2) aggravated offence in relation to living on the avails of prostitution of a person under the age of 18 yrs s. 212(2.1) prostitution of a person under 18 yrs s. 212(4) communication for the purposes of prostitution s. s. 213 Last Updated 10/8/2013 Page 20 of 47 PBLA Criminal Law Cheat Sheets

21 What are regulatory (quasi-criminal) Offenses? Offenses under the Traffic Safety Act o Careless driving s. 115 o Failure to remain at the scene of an accident s. 69, s. 71 o Driving with a suspended driver s license s. 94 Last Updated 10/8/2013 Page 21 of 47 PBLA Criminal Law Cheat Sheets

22 Possession of Controlled Drugs and Substances What is the difference between trafficking / possession for the purpose of trafficking and the possession of controlled drugs and substances? Trafficking and possession for the purpose of trafficking are more serious offenses than possession What are the categories of drugs? (i.e. schedules) Schedule 1 heroin, morphine, cocaine, codeine and many other similar substances Schedule 2 cannabis products Schedule 3 amphetamines, LSD, psilocybin and methamphetamines Schedules 1, 2, 3 contain drugs which are illegal to possess. Schedules 4, 5 steroids and barbiturates o Can be possessed but must be obtained with a prescription o Illegal to import, export or traffic, or to possess for the purpose of trafficking What is the legal meaning of possession? To have something under one s control, to have knowledge of it and to consent to being in control of the substance. Simply not knowing that the substance is illegal, is not a defense. More than one person can be in possession of the same substance. What kind of offense is possession? Hybrid (the Crown can proceed summarily or by indictment) Are there any defenses available? Proper procedures by the police must be followed. If the search was illegal, this could result in evidence being excluded. The Crown must also prove that the substance was in fact the controlled substance they are alleging. The sentence for possession depends on several things: o Type (or schedule) of the drug and quantity; o Whether the Crown proceeds by way of summary conviction or by indictment. o General circumstances surrounding the offence o Prior criminal record (especially drug related convictions) What is the maximum penalty for possession of marijuana (schedule 2)? Typically, possession of marijuana in small amounts will result in a fine. Less than 30 grams (or 1 gram of hash) Up to $1,000 & 6 months in jail Last Updated 10/8/2013 Page 22 of 47 PBLA Criminal Law Cheat Sheets

23 More than 30 grams (or more than 1 gram of hash) 5 years less a day in jail, if the Crown proceeds by indictment. Less if the Crown proceeds by summary conviction. What is the maximum penalty for possession of heroin, cocaine or morphine (schedule 1)? 7 years in jail if the Crown proceeds by indictment Less if the Crown proceeds by summary conviction. What is the maximum penalty for possession of amphetamines, LSD, psilocybin or methamphetamines (schedule 3 drugs)? 3 years in jail if the Crown proceeds by indictment Less if the Crown proceeds by summary conviction for first time offence fine maximum is $1,000 and/or maximum jail time of 6 months. For subsequent offences, fine maximum is $2,000 and/or maximum jail time of 1 year What is the maximum penalty for production of cannabis (marijuana)? Indictable offence maximum jail term of 14 years. Minimum jail term: -6 months jail if the number of plants produced is less than 201 and more than five and the production is for the purpose of trafficking -9 months jail if the number of plants produced is less than 201 and more than five and the production is for the purpose of trafficking and any of the s.7(3) factors apply (the production used real property belonging to a 3 rd party, or constituted a health and/or safety hazard, or used traps or other devices likely to cause death or bodily harm) -1 year if the number of plants produced is more than 200 and less than months if the number of plants produced is more than 200 and less than 501, and any of the s.7(3) factors apply -2 years if the number of plants produced is more than years if the number of plants produced is more than 500 and any of the s.7(3) factors apply Legislation: Controlled Drugs and Substances Act For More Info: Criminal Client Interviews Last Updated 10/8/2013 Page 23 of 47 PBLA Criminal Law Cheat Sheets

24 Theft What will the Crown need to prove before my client can be found guilty? To be found guilty of theft both parts of the offence must be proven: o The act of taking, moving, or using something without the permission or knowledge of the true owner. o The person taking or moving the item must have known that the property belonged to someone else and carries the intent to deprive the owner of the property of its use. What type of offense is theft? Theft under $5000 is a hybrid or dual offense Theft over $5000 is an indictable offense What is the maximum penalty for theft under $5000? S. 334(b) Criminal Code Theft under $5000 hybrid offense The Crown Prosecutor will decide whether the charge of Theft under $5000 will be an indictable charge or a summary charge. o If guilty of indictable offense could be sentenced up to 2 yrs in jail o If guilty of summary offense could be fined up to $2000 and sentenced up to 6 months in jail What is the maximum penalty for theft over $5000? S. 334(a) Criminal Code Theft over $5000 indictable offense If guilty could be sentenced to jail for up to 10 yrs. Restitution If your client plans to plead guilty and makes restitution to the true owner it is important to tell the Judge as this may be a factor considered during sentencing As previously discussed other factors considered include the accused s personal circumstances, prior convictions etc (see Speak to Sentence pamphlet) What are the defenses to a charge of theft? Violation of rights during arrest o right to talk to a lawyer, the right to be free from unreasonable search and seizure or the right to be free from arbitrary arrest and detention etc Color of Right Lack of specific intent ( I forgot ) Last Updated 10/8/2013 Page 24 of 47 PBLA Criminal Law Cheat Sheets

25 What is the color of right? If the person accused of theft honestly believed that he had a legal right to take the property, then he cannot be found guilty of theft (defense does not apply if accused honestly believed he deserved to have the property). What if my client did not intend to take the item (forgot)? To be guilty the accused must have known that he/she did not own something and have intended to take that thing or move it away from the true owner. This means that if a person honestly forgot to pay for an item, and did not intend to leave the store without paying for it, she may not have had the specific intent to steal and may not be guilty of theft. However, people are generally assumed to intend their actions. Legislation: Criminal Code s For More Info: Criminal Client Interviews A Guide to the Law in Alberta Regarding Theft, Fraud, and Possession of Stolen Property (item #7 in the Guide to the Law in Alberta tabbed section) Last Updated 10/8/2013 Page 25 of 47 PBLA Criminal Law Cheat Sheets

26 Fraud What is fraud? The offence of fraud is described as deceitful or deceptive conduct with the goal of depriving any person of something of value. What type of offense is fraud? Fraud over $5000 or involving a testamentary instrument is an indictable offense Fraud under $5000 is a hybrid or dual offense What is the maximum penalty for fraud over $5000 or involving a testamentary instrument? Indictable offense up to 14 years in jail Note that if the total value of the subject matter of the offence exceeds $1,000,000, and the offence satisfies the elements of s.380(1) of the Criminal Code of Canada, then there is a minimum penalty of 2 years imprisonment What is the maximum penalty for fraud under $5000? Fraud under $5000 (hybrid offense) o If indictable up to 2 years in jail o If summary fined up to $2000 and up to 6 months of jail Legislation: S. 380 Criminal Code of Canada For More Info: Criminal Client Interviews A Guide to the Law in Alberta Regarding Theft, Fraud, and Possession of Stolen Property (item #7 in the Guide to the Law in Alberta tabbed section) Possession of Stolen Property What will the Crown need to prove before my guilty can be found guilty? Possession of Property Obtain by Crime the offense is made up of 2 parts: 1) A person charged with this offence must be in possession of property that was (or was partly) gained by theft, fraud, or any other crime. 2) The person must have known that the property was stolen or gained by fraud. If the accused s suspicion was aroused that the property was stolen and failed to investigate whether it was stolen or not, he/she can be found guilty of possession of stolen property. Last Updated 10/8/2013 Page 26 of 47 PBLA Criminal Law Cheat Sheets

27 Legislation: S. 354 Criminal Code of Canada For More Info: Criminal Client Interviews A Guide to the Law in Alberta Regarding Theft, Fraud, & Possession of Stolen Property (item #7 in the Guide to the Law in Alberta tabbed section) Last Updated 10/8/2013 Page 27 of 47 PBLA Criminal Law Cheat Sheets

28 Domestic Abuse What are the legal options for a victim of domestic abuse? Some potential options include: o Criminal assault charges o Peace bond o Restraining orders o Protection orders o Exclusive Matrimonial Home Possession Order o Civil Actions o Victims of Crime- Financial Benefits Program What if my client wants to lay criminal assault charges against her abuser? If the police have not pressed charges the client can do so by calling the Provincial Court Criminal Division Clerk s Office and tell them you want to lay a private information. What is a peace bond? A court order that requiring someone to keep the peace and obey any other conditions that the court places on the order. Such conditions may include forbidding the person from having any contact with another person and requiring the person to attend counseling. Violating a peace bond is a criminal offense How does my client apply for a peace bond? Contact police station or Provincial Court Criminal Division for information How long will it take to obtain the peace bond? Weeks - months How long is the peace bond effective? A maximum of 12 months How does my client apply for a restraining order? Receiving assistance from a lawyer is recommended when applying for a restraining order. Note that the order must be carefully worded. A restraining order is issued from a civil court How long will it take to obtain a restraining order? Maybe processed within 48 hours How long is the restraining order effective? Last Updated 10/8/2013 Page 28 of 47 PBLA Criminal Law Cheat Sheets

29 Typically lasts 6 months but may be extended if necessary. Why should my client register her restraining order with the police? The police will have immediate access to the order s provisions. Breach of the restraining order results in civil contempt charges, and the person will be arrested. How are protection orders different? Protection order offer the most protection A breach of either an EPO (Emergency Protection Order) or QBPO (Queen s Bench Protection Order) is an indictable offense and the police should be contacted immediately. Are there different types of protections orders? Yes, there are 2 types of protection orders: [1] An EPO [2] QBPO How can my client apply for an Emergency Protection Order (EPO)? Police can apply any time of the day or night to get this order immediately Consent of the victim is required Can be granted in the absence of criminal charges being laid Reviewed in 7 days then order is terminated or confirmed (if confirmed it is then a QBPO) Can someone other than the person who claims to be the subject of family violence, make an application for a protection order? Note that an application for an EPO can be made on behalf of the person who claims to have been the subject of family violence, if the person falls in the category of persons designated in the regulations or with leave of the judge How is a Queen s Bench Protection Order (QBPO) different from an Emergency Protection Order (EPO)? Review of an EPO may result in a QBPO A QBPO may also be applied for by direct application to the Court of Queen s Bench. Can be order up to 1 yr and may be extended A QBPO can also require: abuser to reimburse the victim for financial losses resulting from the abuse, attend counseling among other things. What happens if the protection order is not complied with? If the person had actual notice of the protection order and its provisions but did not comply with the provisions or obstructs or interferes with any person exercising duty or function under the Last Updated 10/8/2013 Page 29 of 47 PBLA Criminal Law Cheat Sheets

30 protection order, the person is guilty of an offence. -For first offence, liable to a fine of not more than $5,000 and/or jail time for not more than 90 days -For second offence, jail time for no less than 14 days and no more than 18 months -For third or subsequent offence, jail time for no less than 30 days and no more than 24 months. What is an Exclusive Matrimonial Home Possession Order? Why would a client want to apply for one? If you are legally married you may be able to get an Exclusive Possession Order under the Family Law Act and Matrimonial Property Act. An Exclusive Possession Order requires one spouse to leave the family home and prohibits him or her from entering the home or being near the home. How does victim compensation work? You must fill out an application (fill out the injury application if you were injured as a result of a violent crime in Alberta)in order to be considered for financial benefit. Note that the program does not pay for any costs or losses related to the crime The program is administered under the Victims of Crime Act Are there any other options for my client? If victim of domestic violence could sue with a civil action for assault Legislation: Criminal Code of Canada Protection Against Family Violence Act Victims of Crime Act Family Law Act / Matrimonial Property Act For More Info: Criminal Client Interviews A Guide to the Law in Alberta Regarding Domestic Abuse and Your Legal Rights (item #15 in the Guide to the Law in Alberta tabbed section of manual) Also refer to the section of the manual titled Victims of Crime for further resources Last Updated 10/8/2013 Page 30 of 47 PBLA Criminal Law Cheat Sheets

31 Prostitution What is Communication for the Purposes of Prostitution? s. 213 CCC In general, a person who communicates for the purposes of prostitution or to obtain the sexual services of a prostitute in a public place is guilty of a summary conviction offence. It is any attempt to get a person to pay money for sex or to provide sexual services in return for money (verbal or non-verbal communication). What kind of offense is Communication for the Purposes of Prostitution? Summary conviction offense Other offenses Living Off the Avails of Prostitution S. 212 It is an indictable offence to procure a person to have sex with another person, and punishable by a maximum term of imprisonment of 10 years. Section 212 Criminal Code, indicates that it is an offense to live wholly or in part off of the avails or profits of prostitution. What is the maximum penalty for Living off the Avails of Prostitution? Up to 10 years in jail If the prostitute is under 18 years old, the potential maximum sentence is 14 years. Minimum sentence of 2 years. If violence is used or threatened there is a minimum 5 year sentence. What is Protection of Children Involved in Prostitution Act (PChIP)? This law allows police to apprehend children involved in prostitution with a court order, or without a court order per section 2(9) of the Protection of Sexually Exploited Children Act, and put in a safe house for up to five days. If a director confines a child to a safe house for up to 5 days, the director must appear before the Court within 3 days after the confinement begins to show why the confinement was necessary. Note that director is defined in section 1(1)( c) as a director under the Child, Youth and Family Enhancement Act. Any person who willfully causes the child to be in need of protection or obstructs or interferes with a director or police officer in performing duties or exercising their power, can be charged with child sexual abuse and fined up to $25,000 and/or imprisoned for up to two years. Legislation: S. 212, S. 213 Criminal Code of Canada Protection of Sexually Exploited Children Act For More Info: A Guide to the Law in Alberta Regarding Prostitution (item #12 in Guide to the Law in Alberta tabbed section of the resource manual) Last Updated 10/8/2013 Page 31 of 47 PBLA Criminal Law Cheat Sheets

32 Public Indecency For More Info: What is public indecency? It is an offence to willfully commit acts of indecency in a public place this means in a public place with the presence of 1 or more persons or in a place with intent to insult or offend a person by the indecent act (s. 173 Criminal Code). The standard for this is one of community tolerance. It is an offence if without a lawful excuse one is nude in a public place, or is nude but exposed to public view. If these essential elements are satisfied, offender is guilty of the offence and is punishable on summary conviction (S. 174 Criminal Code). S. 173, s. 174 Criminal Code of Canada Assault What might be considered an assault? (1) Any gesture or action that makes another person reasonably feel that they are going to be assaulted may be considered an assault (even if there was no touching); OR, (2) When a person who is carrying or wearing a visible weapon, stops another person, harasses them or begs something of them (even if there was no touching); OR, (3) Unwanted touching - the person who has been touched must not have consented to the contact. In general, if the person consented to the touching an assault did not occur. However, there are some important exceptions to this rule. The following list provides examples where no consent will be found at law: o If the accused hurts or threatens to hurt another person o If the accused lies about what activity the person is consenting to o If the accused lies about who they really are in order to obtain the person s consent o If the accused uses a position of authority to coerce the person into consenting (teacher student, doctor patient etc) Sports Does a player consent to touching when he/she plays sports? In sports the players have consented to the type of contact/injuries one would normally expect during the course of the game. If the injuries are more serious, it may be assault because the player has not consented to Last Updated 10/8/2013 Page 32 of 47 PBLA Criminal Law Cheat Sheets

33 anything outside the normal rules and risks of the game. What if my client did not mean to touch the other person? A person has to mean to touch or alarm someone else for an assault to happen (accidentally bumping into someone is not an assault). Intention is important. What does the Crown need to prove to find my client guilty of assault? That the person who was assaulted did not consent to being touched. Consent may be o [1] Express o [2] Implied Crown must prove a lack of consent beyond a reasonable doubt When is consent not given? If the person was threatened or otherwise scared Just because a person did not say no does not mean they have consented (sexual assaults) No consent will be found in law: o If it was coerced o If the accused lies about what activity the person is consenting to o If the accused lies about who they really are in order to obtain the person s consent o If the accused uses a position of authority to coerce the person into consenting (teacher student, doctor patient etc) What are the different types of assault? 1) Assault Simpliciter 2) Aggravated Assault 3) Assault with a weapon or causing bodily harm 4) Sexual Assault What kind of an offense is assault simpliciter? Hybrid offense (means the Crown will elect how to proceed) Basic assault, touching without consent No harm, no weapon, not of a sexual nature Sentencing What are the penalties for assault simpliciter? Hybrid offense: If Crown proceeds summarily maximum penalty is $2000 and/or up to 6 months in jail Indictment up to 5 years in jail. Preliminary inquiry if the accused elects Last Updated 10/8/2013 Page 33 of 47 PBLA Criminal Law Cheat Sheets