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 | Jul 30, 2020 | Best Criminal Lawyer, Best Lawyers in Edmonton, Blog, Criminal Defence Lawyer, Criminal Lawyers
According to the Canadian Charter of Rights of Freedoms if you are arrested you have a number of rights. The CCRF is in place to protect these rights.
Some of the most important rights are:
- The right to remain silent when questioned by the police.
- The right to be told why you have been arrested or detained.
- The right to be told that you can hire a lawyer.
- The right to be told about the availability of duty counsel and legal aid.
- The right to speak with a lawyer in private, as soon as possible.
The Right to Speak with a Lawyer
Upon arrest, you have the: “right to retain and instruct counsel without delay and to be informed of that right”.
Police must inform you that you can speak with a lawyer, but do they have other obligations to fulfill? The answer is YES!
What does Police Need to Do to Help You Speak to a Lawyer?
Different police forces go about this responsibility in different ways. Some will give you a phonebook, phone or possibly the internet to search for your lawyer. Others may contact the lawyer themselves then give you the opportunity to speak with your chosen lawyer.
If the police take on the responsibility of finding and contacting counsel for you, they must be as diligent and persistent as you would be. This means they use all means possible to find, contact, and connect you with your legal counsel. It is not enough for them to simply call and leave a message.
This includes actions like:
- Calling all possible contact numbers.
- Expressing urgency to secretaries or legal assistants.
- Giving you access to your cell phone if you have a contact number stored there.
- Reaching out to the family who may have contact information for your lawyer.
How Many Phone Calls Do You Get?
You may have seen in movies and TV shows that someone who is arrested gets one single call. If the lawyer doesn’t answer then it’s game over.
This is not the case in a real-life situation. Unless there are extenuating circumstances, the police officer must give you a “reasonable opportunity” to contact your lawyer. If after a reasonable amount of time the lawyer has not yet answered or returned the call you should be given the opportunity to speak to another lawyer or opt for duty counsel.
If you do decide you do not want to contact another lawyer, the police must inform you that you have the right to wait for a reasonable amount of time to hear back from your lawyer and the police can not interview you during that time.
What Obligations Do You Have If You Are Arrested?
Yes, You also have obligations when you have been arrested. You must be reasonably diligent in seeking counsel.
How Kolinsky Law can Help?
Kolinsky Law is a results-driven law firm with highly experienced Criminal Lawyers. They know that their responsibilities towards their clients begin with accessibility. After contacting them, your lawyer will help guide you through the process. They will work to get details about your arrest, brief you prior to questioning and take steps to get you the best possible results. If you are arrested, it can be overwhelming and scary but you can depend on the Criminal Lawyers at Kolinsky Law to be there every step of the way.
by admin | May 29, 2020 | Best Criminal Lawyer, Best Lawyers in Edmonton, Criminal Defence Lawyer, Criminal Lawyers, Drug Charges Lawyer
Drug charges are very serious. While many people believe that possessing a small amount of an illegal substance or recreational usage of illegal substances won’t do any harm, they are greatly mistaken. When someone is convicted of a criminal offence under the Controlled Drugs and Substances Act (CDSA), it can have significant consequences on their lives in many ways from social stigma, to travel and employment.
The most significant way their lives can be affected is not being able to obtain employment. Most, if not all jobs require background checks and require a clean record to be maintained. Therefore, a conviction such as drug trafficking will jeopardize their ability to get or maintain a job, and could destroy their careers. There may also be consequences for international travel. While drug trafficking offences should not affect domestic travel, every country has its own laws and eligibility criteria for entry.
Book Consultation
Which substances are listed in the CDSA?
The CDSA lists a variety of illegal substances including opium, heroin, cocaine morphine, Marijuana, methadone, “magic mushrooms” and more. These substances are completely banned in Canada. Possession of these substances in any amount is illegal.
Not all Drug Offenses are Considered Equal
There are different levels of drug-related offences under the CDSA. The courts generally distinguish between the levels based on their seriousness.
- Simple Possession
- Possession for the Purpose of Trafficking
- Trafficking
- Importing and Exporting
- Production
If convicted of one of the above offences, the sentence you receive will be determined based on several factors including:
- The offender’s prior record
- The offender’s level in the drug organization
- Number of transactions (sales)
- Whether the offense was planned in detail or out of impulse
- Quantity seized
- The type of drugs trafficked and whether it was one or more types.
It is important to note: sympathy from courts may be more likely given if the offender is supporting an addiction. Where the offender is not addicted, there may be less sympathy.
What is the Process When Charged with Drug Trafficking?
After being arrested and taken to the police station, the police will do one of two things. Either they will hold an offender in custody or release them. It is important that an experienced criminal lawyer is contacted at this point.
If the offender is released from the custody of the police, they will be given a notice as to when they must next appear in court. The trial will be scheduled for a future date.
What You Should Know About Crown Prosecutors who deal with drug offences
The Crown Attorney’s Office prosecutes almost all criminal offenses in Canada. However, drug-related offences are prosecuted by the Public Prosecution Service of Canada. This means that drug prosecutors are more knowledgeable and more specialized in prosecuting drug-related offences.
How to Beat Drug Charges
In order for the accused to be charged with a drug-related offence, the Crown must prove without a doubt:
- That the accused was actually in possession of the prohibited drug
- That they knew the drug they possessed was prohibited
- That they intended to possess the prohibited drug
- That the drug is actually prohibited under the CDSA
The best way to beat a drug trafficking charge is to hire a criminal lawyer at the earliest possible chance. Criminal lawyers are experts in their field and can help to get the best possible result for the accused.
How Can Kolinsky Law Help?
The criminal lawyers at Kolinsky Law are knowledgeable and will be able to help you navigate the process from arrest to trial. Being charged with a criminal offence is a life-changing event that you will not have to face alone. The goal of our practice is to help you avoid criminal convictions and avoid any result that will be detrimental to your life and your future.
by admin | Apr 7, 2020 | Best Lawyers in Edmonton, Blog, DUI, Impaired Driving Lawyers
Everyone knows that you should never drive drunk. If you drink, leave your keys and take a cab. We hear this over and over again on commercials, radio ads and see this very message posted in bars and pubs.
What happens if you do not think you are drunk? What happens if you think you can handle driving home? What happens when you see those red and blue lights flashing in your rear-view mirror? There are different degrees of impairment that some may find confusing but it’s best to know what they mean in advance to find out what your rights are when it comes to driving and alcohol consumption.
As a prominent example, it is not uncommon for the terms “Impaired Driving” and “Driving Over 80” to be confused. The reason is that both these charges are often laid together but they have different meanings.
Driving Over 80:
It is a criminal offence in Canada to operate a motor vehicle when the Blood Alcohol Concentration (BAC) is more than 80mg of alcohol per 100 mL of blood.
Blood alcohol concentration depends on a number of factors including how much alcohol was consumed, how much time has passed since the most recent drink, gender, weight, how the body absorbs alcohol and eliminates it.
Impaired Driving:
Impaired driving does not depend on the blood alcohol level at all. It simply means that the driver’s ability to operate the motor vehicle was impaired by alcohol or drugs.
Federal Consequences:
What is confusing is that someone may be charged with impaired driving when their BAC is below 80mg. At the same time, another driver may be charged with Driving Over 80 but not be impaired at all. This really comes down to alcohol tolerance. In fact, toxicologists have found that some people may be impaired from less than 50mg of alcohol per 100mL of blood while others can tolerate much higher than 80mg of alcohol per 100mL before becoming impaired.
If the driver is found to have a Blood Alcohol Concentration over 80mg, they will be charged with that. If their BAC is below 80 but there is evidence of impairment including weaving, or an accident then they will face an Impaired Driving Charge.
If you are found guilty of criminal-level impaired driving (Over 80), you may be required to:
- Complete a driving prohibition. The prohibition time may vary depending on the offence.
- Pay fees such as reinstatement fees.
- Complete remedial education courses.
- Successfully participate in the Mandatory Interlock Program.
- Successfully complete a roadside test.
Provincial Consequences:
In Alberta, like most provinces, if a driver is found to have a blood alcohol concentration of 0.050 and 0.079 they will face Provincial consequences.
1. First time within a 10-year period:
- an immediate 3-day driver’s license suspension
- a 3-day vehicle seizure
2. Second time within a 10-year period:
- an immediate 15-day driver’s license suspension
- a 7-day vehicle seizure
- Crossroads course
3. Third and subsequent times within a 10-year period:
- an immediate 30-day driver’s license suspension
- a 7-day vehicle seizure
- IMPACT program
How Can Kolinsky Law Help?
Our dedicated team of criminal lawyers work to help those charged with a crime and provide them with legal advice. In cases of Impaired Driving or Driving Over 80, the penalties can be serious. This is where we come in. The lawyers at Kolinsky Law have what it takes to guide you through the process and work to get you the best possible results.
by admin | Mar 16, 2020 | Blog, Child Custody, Child Custody Lawyer
When a married couple decides to end their marriage, it inevitably impacts both parties. When a couple files for divorce, the parties that are impacted, with little or no say in the matter, are the children. This is where the courts step in to ensure that the children have a strong voice and that all matters are dealt with while keeping the best interests of the child in mind.
What Does ‘The Best Interest of the Child’ Mean?
The Family Law Act requires all decisions that involve children be made in the child’s ‘best interests’. In fact, all family laws are based on this principle. The question is, what does that mean? Simply put, decisions are to be made with the intention of having the best possible outcome for the child. The Family Law Act also, requires that judges and law enforcers ensure the safety of a child emotionally, physically and psychologically.
What Factors Do the Courts Consider?
At this point in time, the federal Divorce Act does not stipulate the exact factors for determining what is best for children. The reason for this is how unique each case actually is and the fact that listing factors does not increase the predictability of the outcomes in court. There are, however, many factors that are considered to determine the ‘best interest of the child,’ even if they are not formally outlined in the Act:
- the child’s perspectives
- the child’s own history
- the child’s cultural, religious and spiritual upbringing
- the benefit to the child by developing a strong relationship with both parents
- the ability and willingness for the parents to care for the child
- any family history of violence or abuse
- any criminal proceedings
How Do Courts Determine the Children’s Perspectives?
Anything that a parent or court will decide can have a direct impact on a child. There are different ways some courts may use the input of the child in the legal proceedings to help assess their best interests. Depending on the child’s age and maturity, there is the possibility for them to be heard in any judicial or administrative proceedings which directly affect the child. This hinges on recognizing that children are not only capable of forming meaningful opinions on decisions that could alter their lives, they ought to be listened to by the powers which seek to protect their best interests. Of course, the opportunity for them to do this varies depending on the court and the province; however, the two most common options available are:
- A child advocate or lawyer hired to represent the child
- A child psychologist who interviews the child and prepares a report about their findings
How Kolinsky Law Can Help:
Family Law is one area of specialisation for the lawyers at Kolinsky Law. We specialise in all matters related to divorce including custody, child support, child protection, spousal support and more. We believe that children need their voices heard and we work to ensure that while the divorce process is difficult, the child’s best interests are put above all.
