Facing Criminal Charges

From Suspect to Defendant

If you are facing criminal charges, do not assume that you will be convicted. In Canada, you are innocent until proven guilty. Proving someone’s guilt in a court of law is not as easy as you might think. In order to prevent innocent people from being convicted, a strict set of procedures and rules governs criminal trials. These rules and procedures are there to protect you.

The prosecution is required to prove each element of the offence for each charge against you, including: identity, jurisdiction, time-frame, and if what you did was a crime.

Andrew Barbacki can help you with police investigations:

Do not wait until you have been arrested. Contact Lawyer Barbacki right away and find out what to do next if:

  • You’re suspected of committing a crime
  • You’re the subject of a police investigation
  • The police have contacted you
Court Appearance

Presence at Court:

A lawyer designated as your counsel can make the initial court appearance without your presence at court. At this time all the evidence in the possession of the prosecution is normally provided to the lawyer as part of the Crown’s constitutionally mandated disclosure obligation.

It is important to observe strict court rules during your presence in court:

  • Be well dressed, preferably with a suit and a tie;
  • Be respectful and observe silence when you are in the audience;
  • Do not chew anything or come with coffee or other drinks you will be not admitted by the Court guard.

Peace Bonds:

Article 810 of the Code provides that a person having reasonable grounds to fear that someone will cause bodily injury or damage property can obtain a court order requiring the suspect to sign a promise to keep the peace for a specific period and also to respect certain conditions during that period. Such an order is not a finding of guilt for a criminal offence. In fact such orders are often sought by defence attorneys as a substitute for a finding of guilt on a criminal charge. These 810 orders are most commonly seen in minor assault cases involving family members or acquaintances. In most jurisdictions such cases are only settled in this way after an evaluation of the circumstances by a court appointed social worker.


 The mildest disposition available is a discharge under article 730 of the Code. It can be absolute or conditional on respect of a probation order. The great advantages of these dispositions are that the offender is not actually convicted, but rather discharged, and the record of the case is erased sooner than for other cases and without the usual requirement of obtaining a pardon.


What are the possible sentences applicable to persons found guilty of a criminal offence?

Sentences are imposed according to the gravity of the type of offence; the circumstances surrounding its commission, and the situation of the person convicted. Sentences are generally less severe for non violent offences and for first offenders.

The most severe sentences are mandatory – i.e.: the judge cannot impose less – sentences of imprisonment.

Sentences of imprisonment to be served in the community – also called conditional sentences – have been become available relatively recently. They are often referred to as house arrest and are only available when the sentence imposed is one of less than two years.

Non prison sentences can also be in the form of a fine or a probation order attached to a suspended sentence.

The mildest disposition available is a discharge under article 730 of the Code. It can be absolute or conditional on respect of a probation order. The great advantages of these dispositions are that the offender is not actually convicted, but rather discharged, and the record of the case is erased sooner than for other cases and without the usual requirement of obtaining a pardon.

Rehabilitation or Pardons

Pardons are useful in mitigating the long term effects of a criminal conviction primarily by limiting access to the criminal record.

They can be applied for after being crime free for five years after the expiration of sentences for indictable offences and three years for offences prosecuted by summary conviction.

Alcohol and drug abuse

The provisions of the Criminal Code relating to conditional discharges under s. 730 with conditions to undergo therapy for drug or alcohol abuse are not in force in Quebec and Ontario so once a person is found guilty the judge cannot impose less than a fine of $1,000 and a one year driving prohibition.

As to the driving prohibition, it applies throughout Canada regardless of whether a person has a valid driver’s license. However, the law provides that for a first offence after 3 months a person can drive a vehicle which is equipped with a device preventing it from starting if alcohol is detected in the driver’s breath.

Refusing to comply with a demand for a breath sample

It is a separate offence to refuse to provide a breath sample. However, there are legal safeguards and the role of defence counsel is to assess the legality of the demand.

Care and control of a vehicle while impaired by alcohol or drugs or while having more than the legal limit of alcohol

It is an offence under article 254 to have care and control, as opposed to driving, while impaired or with more than the legal limit of alcohol. In order to decide whether a suspect had care and control the court evaluates all the circumstances with a view to determining whether the suspect intended to set the vehicle in motion or whether there was a risk of setting the vehicle in motion accidentally.

What is the role of the criminal lawyer when a client is stopped for impaired driving?

Once you have failed the roadside screening test the police officer arrests you and reads you your constitutional rights. Usually you are handcuffed and driven to the police station to have two breath samples taken by a qualified technician operating an approved instrument.

Prior to administering the test the police officer is obliged to advise you of the right to contact a lawyer of your choice or a cost free duty counsel whose telephone number is provided. It is important to avail yourself of this right and contact a lawyer without delay.

Normally the lawyer will advise you to exercise your right to remain silent and it is important to heed counsel so as not to incriminate yourself.

Police officers often act friendly or show sympathy in order to gain the confidence of suspects and encourage them to talk. The purpose of the officer is usually to obtain incriminating evidence so it is preferable to maintain silence as much as possible while in the presence of the police.

Nothing in the law prevents you to have more as much communications with your lawyer.

The criminal lawyer’s role is to ensure that:

  1. The client’s rights as guaranteed by the Charter of Rights and Freedoms have been respected.
  2. The legal requirements for the taking of breath samples are respected.
  3. All favourable facts relating to the incident giving rise to the arrest and subsequent proceedings are accurately noted by the police officer in his report.
What are the main offences relating to drinking and driving?
  1. Driving or having care and control of a vehicle while impaired.
  2. Driving or having care and control of a vehicle with more than 80 milligrams of alcohol per 100 millilitres of blood.
  3. Causing death or bodily harm while impaired or with more than the legal limit of alcohol.

What is the minimum sentence for a first offence?

The mandatory minimum sentence is a $1,000 fine and a prohibition from driving for one year.

Is a conditional discharge available for these offences?

No, neither absolute nor conditional discharges are available.

Do I have to take the breathalyser test?

The breathalyser test has to be taken. If you refuse to take the test you will be charged with refusal which will be considered as if you failed the test e.g. as if you actually blow over the limit. As the summon of the Quebec police specify a refusal leads to criminal or penal charges, revocation or immediate suspension of the driving permit.

Blowing into the breathalyser machine:

You will certainly blow first into a portable breathalyser that will be brought from the police station or available during a road control setup.

This equipment indicates FAIL or PASSED. If you fail the test you will be arrested and driven to the police station where a qualified technician will perform further breath tests and produce a report. You will be charged with driving under the influence of alcohol or drugs.

Criminal Record for Permanent Resident Status

What is the effect on immigration applications in the case of foreigners convicted of criminal offences?

Having a criminal record is never helpful even for Canadian citizens. In the case of applicants for legal status under the jurisdiction of Citizenship and Immigration Canada criminal convictions can be a complicating factor. The effects on requests for various types of status, such as refugee, citizenship or work permits, varies according the number of charges, the maximum penalties provided for them and the actual sentence imposed. It is the responsibility of the criminal lawyer to verify the law governing the particular immigration status of the client in order to try to resolve the criminal charges in the way which least jeopardizes the chances of the client’s being granted the immigration status sought.

In less serious cases criminal lawyers try to obtain absolute or conditional discharges when a finding of guilt cannot be avoided since these measures have the least legal consequences for the offender. 


Persons charged with all except the least serious criminal offences are required to be fingerprinted and photographed, usually at the police station within the district where they are arrested.

Generalities on Drugs

The primary distinction among drug offences is between cases of simple possession – i.e.: for personal use – and those of trafficking or possession for the purpose of trafficking.

The type and quantity of the substance determines the severity with which the law deals with a particular offence. Trafficking in even relatively small quantities of drugs such as heroin and crack generally attract prison sentences.

In the case of marijuana, simple possession of 30 grams or less is only punishable as a misdemeanour which has the hugely important practical effect of making fingerprinting not available for persons charged with such offences.

In modern times police investigations often target major organisations involved in large scale importing and trafficking. Sophisticated investigative tools are provided for under the Criminal Code, such as wiretap, tracking devices, search warrants and general warrants. Each of these processes is regulated by detailed legal provisions and is the subject of many court decisions interpreting them.


Claims for Damages

It has become the practice for large department stores to send letters demanding monetary compensation for the expense of arresting and charging a suspect with theft. The demand is usually made before the case is dealt with by the criminal court and payment of the amount would obviously be incriminating.

It is important to remember that the Charter applies to arrest made by private detectives and anyone apprehended for shoplifting should exercise the right to consult an attorney even if you are detained by the store detective.

The EVE Program

Statistics show that shoplifting is a crime committed disproportionately often by women.

The Elizabeth Fry society is an organization dedicated to helping women in trouble with the law.

One of the services offered is the Eve Program http://www.elizabethfry.qc.ca/eve-historique.html which provides support and education to women in order to minimize the problem of shoplifting. Attending this program is usually helps an offender benefit from the lenience of the Court, particularly for a first offender.


This offence falls under the definition of theft under articles 322 and 334 of the Criminal Code.

These cases can be defended when the evidence is insufficient to prove the specific intent to steal or when incriminating evidence is obtained illegally, usually by private detectives who are less versed in the legalities of detecting offences and arresting perpetrators.

In many cases it is possible to minimize the impact of a finding of guilt by persuading the Court to impose a discharge instead of convicting if the client is found guilty.

Statistics show that shoplifting is a crime committed disproportionately often by women.

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