by admin | May 18, 2021 | Blog
Being Charged with a Crime in Edmonton
Being charged with a crime can be a complete disaster and it should not be taken lightly. The law has specific guidelines in place guaranteeing the fundamental rights of an accused before a judge or jury can make a decision. During this time, an accused needs to get everything you possibly can ready to fight for their innocence. The following are certain rights of the accused in a criminal case, and an accused should ensure these rights are not violated.
What About Bail?
In rights of the accused cases, an accused may have the option to get bailed out depending on the crime they have been accused of. The accused should always ask about bail to speed up the process. The police may be able to contact the judge for a bail hearing. Bail hearings can occur in several ways such as in person, by phone, or video conference. Bail is granted depending on the seriousness of the allegations against the accused, the likelihood of you showing up to court, public safety, or personal safety risk. If the judge or justice of the peace agrees you should be released, bail conditions will be set which will have some conditions such as staying away from the victim, remaining free from alcohol and drugs, and paying a fee to the court.
Why You Have The Right to Remain Silent
Many individuals feel they have to provide law enforcement and those who work for the court with information upon arrest and this is simply not true. An accused has the right to remain silent throughout the entire process of a criminal proceeding. The accused does not have to testify at any court proceedings for the duration of the case. Now, I know what you’re thinking. Cooperating with the justice system is on the top of an accused’s mind and they want to just be free. If you provide any information, this information can be held against you. Testifying or speaking about their case can hurt the case and the judge and jury can’t use this right as proof of guilt. The prosecution must show the burden of proof to prove the defendant’s guilt beyond a reasonable doubt. If the accused does decide to testify in his/her defence, questioning by the prosecution and attorneys will occur and could potentially incriminate the accused.
How Can I Understand the Trial
Undergoing a criminal trial in Canada can be confusing especially if you only speak one language. In Canada, English or French is spoken, however, you can choose to have the trial in the language you feel most comfortable in. If you speak both languages, per criminal law Alberta, the trial can occur in both languages to help you understand better. The first time the accused presents in front of the judge, the judge will give the accused the right to choose which language they wish to have the trial in. When you choose a particular language, the judge, jury, and prosecutor must understand the language you speak.
Who Can Help Understand the Trial
English and French are not the only languages in the world and if the accused doesn’t speak these languages, they have a right to an interpreter. The government is responsible for the cost of an interpreter during the trial. An interpreter will be provided if the accused or a witness needs the language interpreted so they understand the process. If the accused does decide to testify they can testify in their language and have the translator help understand what is going on.
Does the Accused Have the Right to a lawyer?
An accused has the right to an attorney as soon as they are arrested and throughout the entire legal process. A criminal lawyer can help guide you through the process. This way the accused can be represented by an attorney in front of the court. An accused usually needs to pay for a lawyer however if the accused has a low income, they may qualify for assistance from the court covering the cost. Going through the court process without representation may result in the outcome you wish for. To ensure the process is fair, contact a criminal lawyer right away. If the accused knows the legal system, he/she may act on their own without an attorney, this is called pro se. When acting pro se, the judge will make sure the trial is fair by explaining certain steps throughout the process.
The criminal court system can be stressful, especially as an accused. Taking the necessary time to understand your rights and how the system works is important to help you understand the potential outcome of the situation. Contact a criminal lawyer at Kolinsky Law now to help you through the process.
by admin | Apr 28, 2021 | Blog
Separating from your spouse can be confusing and scary due to the unexpected course the divorce can take. If you are planning to divorce in Edmonton, Canada there are certain steps you must take to end the relationship. If you decide to separate from one another and end the relationship, you must be separated for at least one year to obtain a divorce. Since each divorce is different it’s important to understand the proceedings.
Why File for Divorce?
There are waivers towards the one-year requirement in Edmonton in the event your spouse was abusive, committed adultery, or is physically or mentally abusive. Adultery happens when a married person has an affair with someone that is not their spouse. If filing for divorce on grounds of adultery, you must prove it took places such as providing evidence or an affidavit by the spouse who committed adultery. Cruelty is another reason why some spouses file for divorce. Cruelty occurs when the other spouse is violent, and verbally abusive including insults or threats, drunk or excessive drug use. A family law lawyer can help guide you in the process including the distribution of property and debts, spousal support, child support, and custody and visitation rights if there are children involved.
How to file for divorce in Edmonton Alberta
If you still wish to proceed with divorcing your spouse, there are certain steps to take. There is the opportunity to represent yourself or hire a lawyer for a divorce. It is strongly recommended to hire a lawyer as they are familiar with the law and can help you with the process. Ensure you have been living in the province for at least one year. This is a requirement before divorce proceedings can occur. Filing a Statement of Claim for Divorce with the Clerk of Court of Queen’s Bench and paying the filing fee of $200 will start the divorce process.
Why Do I Need to Fill Out the Statement of Claim?
When filling out the Statement of Claim, you must provide the reason for divorce. You must provide any details about you and your spouse as well as any agreements you have made regarding the division of property, custody agreements, or spousal and child support. In the event you cannot agree with your spouse regarding any division or property, this will be decided by the court. A lawyer can assist with filing a claim for property division to include custody and financial support. After all the paperwork is complete and submitted to the court, you must serve a copy to your spouse. Your spouse must know you have filed for divorce, you can hand the notice to your spouse or have them served, mailing of documents is not allowed as the spouse could potentially claim they did not receive it. Your spouse has forty days to respond to the claim, if your spouse is located outside the country or province, the time to respond will be set by the court.
Who Needs to Take a Course
As stressful as separation and divorce may be, there may be courses each person needs to take prior to the divorce being finalized. In the event children are involved, parents and guardians may be required by the judge to take impact classes to help build relationships, how separating affects parents and children, build communication skills, parenting plans and identify any legal issues. The course can be completed online through the Resolution Services Learning Centre.
But What if the Divorce is Uncontested
If your spouse doesn’t contest the filing, which means they agree with the divorce and stipulations, there will not be a court hearing. The spouse can file a demand of notice which means they do not object to the claim and agree with the Statement of Claim for Divorce. Your spouse also has the option to not do anything and just wait for the court to handle the divorce. The court will review all the paperwork, make necessary adjustments, and ensure any children involved are taken care of and receive the correct support according to Child Support calculator Guidelines. Each spouse needs to agree with the overall judgment and the judge needs to be satisfied with the stipulations prior to signing off on the order. After 30 days, if you and your spouse do not wish to appeal to the court, the divorce will be finalized on day 31.
Conclusion
Divorce can be stressful and heartbreaking however it’s important to contact a lawyer in the event you divorce Edmonton. A good family law lawyer will assist you with understanding the divorce law in Edmonton and try to assist with a smooth process. Kolinsky Law’s local divorce attorney will help you understand what to expect during the divorce process and can potentially help you file the paperwork and prepare you for divorce.
by admin | Jan 13, 2021 | criminal
When a person is arrested, they can be held in custody, or released into the community after signing a Promise to Appear. A Promise to Appear is a legally binding document that will list a court date that they must attend. Attending one’s court date is a serious matter that can affect later judgments related to one’s case. Once a court date is missed, a warrant may be issued for a person’s arrest, and they may be charged with Failing to Attend Court. It can also affect your ability to gain bail.
When happens if I miss court for the first time?
When you miss your first court date, there are a few possibilities available to the court.
- Adjourn the matter to a later date.
- Note accused person’s lack of attendance and adjourn for a later date: the notation will be read by the court at that later date, and taken into consideration.
- Issue a bench warrant for the person’s arrest, but not release it to police until the person has the opportunity to cancel the warrant. This is called a discretionary bench warrant. It gives the person one chance to appear at the later date and avoid being arrested and charged with Failing to Attend Court. The warrant will be cancelled if they appear at their next court date.
- Issue a bench warrant for the person’s arrest and charge them with Failing to Attend Court. The warrant is released to the police who will then execute the warrant and arrest the person.
A charge for Failing to Attend Court is quite serious, and can lead to additional jail time. It can also affect your ability to get bail when you do appear in court. There may be a higher cost associated with gaining bail, or you may need a surety. You may not even be granted bail. Navigating the legal system is much more difficult when you are held in custody as opposed to being free in your community.
What if I need to miss my court date for a good reason?
Let the court know. You cannot just choose to not show up. Tell the lawyer so that they can represent you if you are unable to appear, as sometimes they can handle the more routine appearances. The lawyer can advise you on when you should be appearing and when it is possible to not attend court. The more important appearances would be for setting a date for trial, entering a plea, or the day of your trial. The important thing is to always ensure that your lack of appearance is communicated with the court.
If you have an emergency or obligation that cannot be changed for an important court appearance, you must have documentation to back it up, such as a doctor’s note for a medical appointment.
If you do not have a lawyer, communicate your inability to attend to the Duty Counsel who will be able to communicate it with the court.
What happens when I miss court the second time?
The court will issue a warrant for your arrest and you will be charged with Failing to Appear.
You have a couple options when the warrant is issued. You can attempt to have the warrant revoked or cancelled, or you can turn yourself in. If only a short period of time has passed, you may have an opportunity to get the warrant cancelled, as long as you are able to provide a lawful excuse. Lawful excuses include the death of a family member or illness. Gather documentation to back up your excuse.
What should I do after the fact?
If you find out that you have missed a court date, contact a lawyer. They can call the courthouse and talk to the clerk. They can also find out if there is a bench warrant or a discretionary warrant for your arrest. If not, they will find out your next scheduled court date and you must make certain you can attend. Bring any documentation you have to back up your excuse for not attending.
If there is a warrant, the lawyer can see if you will be able to get it revoked or cancelled. They can advise you of the next best steps, and whether or not you will be able to get the warrant cancelled.
If not, prepare to turn yourself in. It is difficult to be able to prepare for your next court dates and bail release from inside jail. Write down important phone numbers, especially of people who would be able to act as a surety for you at your bail hearing.
Make sure that you attend your court dates and communicate with the court when you have a good excuse for not attending. Not showing up for your court dates will only hinder your ability to navigate through the legal system and make your situation more difficult in the long run.
References:
Criminal code: https://laws-lois.justice.gc.ca/eng/acts/C-46/section-145.html
I missed my court date. What happens now?
by admin | Dec 11, 2020 | Best Criminal Lawyer, Blog, Criminal Defence Lawyer, Criminal Lawyers
When a person is charged with a crime and is awaiting trial in Canada, they can be temporarily released on bail or held in custody until their trial. Many considerations are held in balance when bail is considered, such as the charged person’s interest in freedom; the protection of community, victims or witnesses; and the importance of maintaining public confidence in the system. Bail is a complex subject and its procedures change depending on the crime someone has been charged with, and the stage of their case.
What is bail?
Bail refers to the temporary release of a person facing criminal charges before they appear for trial. The technical term for bail in Canada is ‘judicial interim release‘. If police are going to detain a person instead of releasing them after arrest, they must bring them before a judge or justice of the peace within 24 hours.
Police might have different reasons to bring someone to bail court, depending on the severity of the charges. For example, these reasons may include:
- The likelihood of them attending their court date
- The protection of witnesses, victims and the community, or
- The nature of the crime they are charged with.
The crown should not detain a person merely for the sake of completing their investigation, but if there is concern that the charged person may interfere with the investigation or destroy evidence, it may be reasonable grounds to deny bail. The bail hearing is not a trial to determine whether or not a person has committed the crime for which they are being charged. It is a hearing to determine whether or not it is reasonable for them to be released back into the community temporarily, and whether they should be bound by certain conditions for this release, including producing bail money.
Legally, the grounds for detention are:
- To ensure a person will attend court as required (primary ground)
- To ensure the safety of the public such as any victims or minors (secondary ground)
- To maintain confidence in the administration of justice (tertiary ground)
Typically, when someone is detained, the onus is on the police and crown prosecutor to prove why a person should be held longer, or have more restrictions on their release. The Canadian Charter of Rights and Freedoms guarantees that no person should be denied reasonable bail without just cause.
There are however, cases when the burden is on the charged person to prove why they should not be detained. This is called ‘reverse onus’, and applies in a few situations, including the following:
- If they were on release for another offense when they committed the subject offense
- If they have a history of failing to attend court or complying with promises to appear
- If the offense involved their use of a firearm
- If the person normally does not reside in Canada
- If the offense is purported to be related to weapons trafficking, terrorism or connection to a criminal organization
What happens at a bail hearing?
A person appears before a judge or justice of the peace. In Alberta, a first appearance bail hearing happens by video or teleconferencing. Bail hearings happen from 8am-midnight, 365 days a year to ensure that anyone being detained has the right to a hearing within 24 hours. If you are arrested, you have the right to speak to a lawyer before your bail hearing.
The Justice of the Peace decides one of three things:
- to release the person
- to detain the person
- to adjourn case without bail until a later date
If a person is granted bail, they may or may not have conditions tied to their release. Conditions are to be as unrestrictive as possible while securing public safety, ensuring attendance at court and respecting the administration of justice. It is important for the accused to have proper representation in court to ensure that the restrictions can be as limited as possible in their favor.
What are the possible bail release outcomes?
There are a number of options available for the judge or justice of the peace to consider when releasing a person on bail:
- Undertaking without conditions: like a promise to appear, you promise to come to court when required.
- Undertaking with conditions: You promise to come to court, but you have some restrictions on your freedom. For example, you might not be able to have contact with a specific person.
- Recognizance: You agree to a) follow conditions set by the court b) pledge/promise a set amount of money to the court to be a security for your release c) sign your own bail. By signing for your own bail, you recognize that you will pay that set amount of money to the court if you do not follow your bail conditions.
- Surety recognizance: Someone must come to court and agree to supervise you and provide a specific amount of money as security to the court. If you do not follow your bail conditions, your surety will have to pay the money to the court.
Failures to comply with an undertaking, or a breach of recognizance are also chargeable offences, so any breach of bail conditions may lead to more charges down the line.
If you have been charged with a crime, feel free to contact us to guide you through this complex and difficult process.
by admin | Sep 30, 2020 | Blog
In Alberta, a child’s birth mother and her male spouse are considered the default guardian arrangement for a child. However, families do not always fit neatly into these categories, and as the situation calls for it, roles may have to be defined. In the eyes of the law, it is essential that children have a designated person or persons who look out for their best interests, as children are not considered to have the capacity to advocate for themselves until they reach the age of majority.
What is a legal guardian?
In Alberta, a legal guardian is one who is responsible for the well being of a minor child or adult over the age of 18 who has been determined to not have the capacity to make decisions for themselves. For the purposes of this article, we will be focusing on child guardianship. A guardian of a child has certain rights, responsibilities and powers with respect to the minor child.
A guardian has the right to:
- Make important decisions about a child’s life.
- To spend enough time with the child that they are able to make informed decisions and exercise their responsibilities towards the child.
Guardians are responsible for:
- The basic needs of the child: food, clothing, shelter and medical care.
- They are also responsible to care for the child’s physical, emotional and psychological development.
- Guardians have the power to determine:
- Where and with whom the child will live
- What the child’s cultural, linguistic, religious and spiritual upbringing will be
- The type of education the child will receive
- Day-to-day decisions affecting the child including care and daily activities
- Whether the child should work
- Dental and medical treatment
- To receive health, education or other information on behalf of the child
- Representing the child in legal matters
- Giving consent for the child to marry if they are between 16 and 18 years old
Guardianship does not give you the right to make financial decisions for a child.
What laws talk about child guardianship?
There are a few legal documents that discuss child guardianship: The Family Law Act and The Divorce Act. The Divorce Act is a federal document and governs guardianship in cases of divorce, and The Family Law Act governs all other child guardianship cases in Alberta in which divorce is NOT taking place.
Who can become a guardian?
A guardian can be different than a parent, though parents are by default considered the guardians of their children as long as they fit certain criteria.
A parent can become a guardian as long as they acknowledge that they are the parent of the child and demonstrate an intention to assume responsibility for the child within one year of becoming aware of the pregnancy or birth of the child.
Demonstrating that you have the best intentions for a child is important to become a child’s guardian. In Alberta, a person can be a guardian but not a parent, and be a parent but not a guardian.
Intent to assume responsibility for a child can take many forms including marriage to the other parent, cohabitating with the other parent, or voluntarily offering financial or other support.
Non-parent adults are also able to become guardians if they fit certain criteria such as:
- They have had care and control of a child for a period of over 6 months.
- Were assigned guardianship in the will of one of the parents.
A child can have more than 2 guardians, such as in the case of parents who remarry; a child could have 2 sets of parent guardians: a mother, a stepmother, a father and a stepfather.
As a side note, if a pregnancy is the result of a sexual assault, the person who committed the assault is not eligible to become a guardian.
If there is no adult that is able or willing to assume guardianship for a child, a public guardian will be assigned by the court.
How can you become a guardian if you are not a parent?
There are a few ways to become a guardian if you are not already a parent:
- A guardian who is a parent of a child may appoint a person to be a guardian in their will
- Relatives or friends can apply for a Guardianship Order, which requires a ‘home study’. A home study requires a social worker to visit your home and talk to the people around you in order to determine if you would be a good guardian for the child.
Please keep in mind that the information provided here is for general information, and if you have specific or situational questions related to child guardianship, speak with Kolinsky Law lawyer.
