This material is free and provided by the Law Society. It is for general information only and is not intended for commercial use. It is not legal advice.
If you have a legal problem, consult a lawyer.
Arrest & Release
What Is An Arrest?
When the police charge a person, they may arrest him, or take him into the RCMP detachment and keep him there. Arresting someone is not the same as charging him. A charge is a formal accusation of a crime. An arrest is detaining someone in police custody, which may mean keeping him in jail or otherwise restricting his freedom.
The police may also arrest someone while they are still investigating a crime and before a charge is laid, if they think the person might interfere with their investigation.
The police do not always arrest someone who is charged with a crime. Sometimes he is served with a summons or asked to sign a promise to appear in court on a certain date, and then released.
How long can the police hold someone under arrest?
The police have to bring a person they have arrested before a Justice of the Peace as soon as possible and always within 24 hours of his arrest. Only a Justice of the Peace can decide that a person can be held in jail longer than 24 hours. This is done at a show cause hearing.
What is a show cause hearing?
A show cause hearing is the hearing held before a Justice of the Peace or Judge to decide if a person should be kept in jail before his case comes up in court. It is also called a bail hearing or judicial interim release hearing.
The Justice of the Peace may order him kept in jail until his case comes up for trial, or released unconditionally, or released with conditions attached to his release.
In most cases the accused person will be released, either by the police or the Justice of the Peace. The Justice of the Peace will often attach conditions to the release order. The most common conditions are to keep the peace and be of good behaviour (behave properly and not break the law), and not to communicate with the alleged victim.
Why would an accused person be kept in custody?
There are only two reasons that an accused person can be kept in jail before being found guilty of a crime; to ensure that he shows up in court, and to protect the public by preventing him from committing more crimes. The Criminal Code says that an accused person should not be held in custody unless there is a good reason to do so. The reason for this is simple. Jail is a punishment for people who have been found guilty of a crime. Until that time, an accused person is presumed to be innocent. In order to keep someone in jail before they have been found guilty of a crime, the court needs a very good reason.
What can I do if I am afraid of the accused person?
If you are afraid that the accused person will harm you or your children, it is essential that you tell the police of your fears. This is important information for the Justice of the Peace to know in deciding whether to released the accused. Even if the Justice of the Peace decides to release the accused person, he will likely attach conditions to that release which would make you feel safer.
At the show cause hearing the Prosecutor can let the court know on your behalf that you are afraid of the accused person, and wish to be protected from him.
What happens if the accused disobeys the conditions of the release?
If the accused person disobeys these conditions, for example by contacting you when he has been told not to do so, he can be charged with breaching his recognizance or undertaking (breaking the promise he made to behave)
This is a separate offence for which he can be charged. Therefore be sure to report any breach of conditions to the police immediately.
What can I do if the accused person threatens me?
This is another offence for which the accused person can be charged, called obstruction of justice. It is a crime to get you to have the charges dropped, or to frighten you into not testifying in court, or changing your evidence from what you told the police initially. It is a crime for a person to do this, even if he was not ordered to stay away from you as a condition of his release. The accused person can be charged with the crime of obstructing justice and his release may be cancelled, meaning he will be kept in jail until his trial. They can also be charged with uttering threats under s.264.1 of the Criminal Code. Therefore you should report any threats the accused makes to the police immediately.
Assault Investigation & Charges
What Is A Police Investigation?
Every time the police receive a phone call asking for assistance, they must prepare a report of what has happened. If they have reason to believe that a crime has been committed, they must investigate the complaint.
An investigation involves asking people who know something about the incident what happened. It also includes collecting physical evidence that shows that an assault has occurred. Since the victim is the person who knows most about the assault, the police will want to ask her about it.
What Will The Police Ask Me?
As soon as the immediate crisis is over, you should tell the police everything that happened to you in as much detail as possible. They will make notes of everything that happened, and may ask you to sign a statement. Sign and date your statement, and give it to the police. This statement will be important to help you refresh your memory when the case finally comes to court, which could take several month. The police will also want to talk to any other witnesses to the crime. This can be difficult, particularly in cases of sexual assault, as often there are no other witnesses to the crime.
When the police talk to you about your complaint, they will be trying to find out exactly what happened.
Questions they ask you may include the following:
- Were you struck?
- How did the attack start?
- Did anyone see the assault?
- Were alcohol or drugs involved in the assault?
- Did you scream or try to escape?
Will The Police Talk To The Person Who Assaulted Me?
Yes, they ask him a lot of same questions they asked you. However, he does not have to answer any of their questions if he doesn't want to. The police have to tell him this before they ask him any questions. They also have to tell him that anything he says can be used in court against him. They also have to let him speak to a lawyer if he wishes to do so.
A person charged with a crime has the right to a fair trial and these rules protect that right. It is the responsibility of the Crown and police to prove that he assaulted you. It is not the responsibility of the accused to prove he did not assault you.
What Else Is Involved In A Police Investigation?
As well as talking to people, the police will want to collect physical evidence that you have been assaulted. This will involve getting the results of the medical examination.
They may also want to keep the clothes you were wearing at the time of the assault, particularly if they have been torn or damaged. The police will also go to the place where the assault occurred to see if there is any evidence there of an assault. If the assault took place in someone's home, the police can only go in to investigate if they have the consent of a person living there or a search warrant. A search warrant is a piece of paper signed by a Justice of the Peace allowing the police to search a person's home. If the police find any evidence of assault, such as a weapon, at the scene of the crime, they will take it to use it as evidence at the trial. They may also take photographs of the scene and look for things like bloodstain or upset furniture that show an assault occurred there.
If I Did Not Call The Police At The Time Of The Assault, Can I Do So Later?
Yes. There is no time limit within which an assault charge must be laid. However, the longer you delay in calling the police about an assault, the less likely it is that an assault charge will be laid. There are two reasons for this. First, the delay makes it much harder for the police to collect evidence (other than your testimony) of the assault. Second, the delay can prejudice an accused person's right to defend himself against a charge of assault, by making it harder for him to collect evidence.
In addition, an accused person has the right to a trial within a reasonable time. For all these reasons, it is important to inform the police as soon as possible if you have been assaulted.
When Are Charges Laid After An Assault Complaint?
Once the police have completed their investigation, they decide whether to charge a person with a crime. This decision is based on whether they feel there is enough evidence of an assault to stand up in court. The most important evidence they need is your statement about the assault against you. If there 'is evidence of an assault, such as your statement, the police are obligated to lay a charge. The charge can be laid on the basis of your testimony alone, or your testimony along with other physical evidence which the police may collect.
If The Police Don't Lay A Charge, Can I Do So?
Yes. Any individual who has a good reason to believe a crime has been committed may lay a charge. To do so, you would go to a local Justice of the Peace (JP) or a Court Clerk and tell them that you wish to lay a charge, against whom, and why. If they think you have reasonable grounds they will send you to the RCMP for an information form. Fill it out (a courtworker can help if you have difficulty). The JP/Court Clerk cannot help you fill out the form because they must remain unbiased. Then take the form, which charges the person with the offence, to the JP/Court Clerk. You will be asked to swear the information on the document is true. It is very difficult to charge someone on your own. If possible, it is always better if the police lay the charge. If you will give the police a statement about being assaulted, they will always lay charges themselves.
In that way, they are responsible for collecting the evidence of an assault. They also assist the lawyer for the Government called the Crown Prosecutor in presenting the case to the Court. Your only role in the case is as a witness for the Crown. You are only responsible for telling the court what happened to you. You are not responsible for proving the assault took place.
Can I Drop The Charge?
No. If there is evidence of an assault, the police have to lay charges, and proceed with them. The decision whether to lay charges is not yours, but is made by the police in consultation with the Crown Prosecutor. This is true even if you ask them to drop the charges or say you would rather get a peace bond than have the charges laid. This is done to prevent the accused person from pressuring you into dropping the charges.
Once the police lay the charges, they consult with the Crown Prosecutor about the case. The Crown Prosecutor reviews the case and decides whether there is enough evidence to take to court. If the Crown thinks there isn't, they may decide to withdraw the charges. If there is, they will proceed to court, even if you do not wish them to do so.
Buying a Home
Buying a Home
Buying your home may prove to be one of the largest investments of your life. You should use an expert to protect your investment just as you do to care for your car, to educate your children or to attend to your health.
Your lawyer knows the problems in the real estate business and can protect you from them if consulted early enough.
What Can I Afford?
As a general rule, it is doubtful that you should buy a home if the payments would exceed 25% of your gross family income. Don't forget to consider other expenses, such as new furniture and drapes, moving charges, legal expenses, and tax adjustments.
When you find the house you want, you may make an offer to buy it on a printed agreement called 'Offer to Purchase Real Estate'. This form is available at most stationery stores for a small charge, but if a real estate agent is helping the owner to sell, the agent will have the form. The agent will fill in the offer once you have decided on price and terms. Be careful that the offer records exactly what you want to buy and how you propose to pay for it. It is wise to consult your lawyer before signing the offer.
Before You Sign an Offer to Purchase
Save any advertisements and obtain a copy of the photographic listing, if there is one, in case there is a problem later about what you thought you were getting. Include in the offer any items mentioned in the advertisements or listing. Insist that "any promise good enough to make is good enough to write down". For example: Are the drapes and carpets included? Is the hot water tank paid for? Try to examine the home for structural soundness. If possible, employ an expert of your choice. The cost of such an examination is small compared to the price of the property, and may prove to be good insurance.
Check out any possible zoning or building restrictions. This information is normally available from the local government.
Make your Offer to Purchase subject to conditions for your own protection. You could make the purchase subject to the sale of your present home, or the arrangement of financing for your purchase. Your offer could be subject to your lawyer's approval, or a satisfactory report from an expert on structural soundness. You could also make your offer subject to a report stating the house has never had urea formaldehyde insulation.
Your offer should always include a time limit on acceptance by the seller. Your offer should specifically describe any personal property intended to be included in the purchase. Items attached to the buildings are automatically included, unless the contract specifies otherwise. Those not so attached must be mentioned or they remain the property of the seller. A refrigerator, for instance, may be removed by the seller unless it's in the offer. Drape tracks, which are attached to the building, would have to remain, but drapes which are not attached could be taken.
You should try to obtain an estimate of the costs which you may have to pay in addition to the actual purchase price.
What Costs Can I Expect to Pay?
Among the costs which could arise in the purchase of a home are:
- Adjustment of realty taxes
The responsibility for the taxes is divided between the buyer and the seller based on the portion of the year each of them occupies the house. For example, if you buy the property as of July 1 and the seller has already paid the taxes for the entire year, you will have to reimburse the seller for half of the year's taxes.
- Insurance for fire and other hazards
- Fuel and utility hook-up charges
- Land titles registration costs
Land Titles Offices charge fees to register documents transferring ownership of property from one person to another, including a Land Transfer Fee which is based on the value of the property. An additional fee is charged for registering a new mortgage.
- Legal fees
These are the charges your lawyer makes for services. There will be an additional fee for preparing and filing a mortgage.
These are actual expenses your lawyer pays out on your behalf.
- Surveyor's Certificate and Zoning Memorandum
You may have to pay an additional charge for a surveyor's certificate or zoning memorandum if they are needed.
Most purchases of new housing will require the buyer to pay Goods and Services Tax on the purchase price, although there is a partial rebate if the purchase price is less than $450,000. Most purchases of used housing will not require you to pay any G.S.T., although you should obtain a written assurance from your seller that this is so. You will have to pay G.S.T. on your lawyer's fees and most disbursements, as well as on surveyor's charges for a new survey. However, there is usually no G.S.T. on Land Titles registration costs.
What Does My Lawyer Do For Me?
Your lawyer can help:
- Determine that the Offer to Purchase reflects your intentions. Signing the offer with a condition stating "subject to my lawyer's approval" should have this effect, but it would be best to have your lawyer go over the offer before you sign it.
- Search title, to prepare or check all legal documents and to complete registrations which transfer title to your name.
- Advise you on financial matters, such as where and how to obtain a mortgage.
- Properly compute the costs of completing the purchase and make sure you pay the correct amount to the seller.
- Examine documents such as Surveyor's Certificates and Zoning Memoranda, and inform you of any problems.
- Obtain information on property taxes.
- Assist in arranging insurance coverage for the house.
- Make certain that the seller receives your money only when the property has been correctly transferred to you.
- Confirm that you have obtained title to the property, with no mortgages or other claims against it except those you have agreed to.
- Assist you with any problems which may arise before or after you obtain possession.
In summary, your lawyer helps to ensure that you get exactly what you have agreed to buy at the price you agreed to pay and on the agreed terms.
When the transaction is finalized, your lawyer will send you a written report confirming what has been done, and itemizing all funds you have paid or have yet to pay.
Do I Need a Lawyer's Help?
You do not need a lawyer every time you have a legal question. You may be able to get the information you need from other places such as:
- Legal Services Clinics
- Community groups
Getting information about the law helps you decide if you need to get a lawyer's advice or not.
You may need or want to see a lawyer if you:
- are arrested and charged with a criminal offence
- want custody or access to children make a will; or are executor of someone's will
- are being sued or suing someone; are buying or selling a house; want a separation or divorce
Don't wait until a problem is very serious remember to act early.
What If I Can't Afford A Lawyer?
If you cannot afford a lawyer, you may be able to get a Legal Aid lawyer. Call your nearest Court Worker to see if you can.
Legal Aid lawyers usually only handle:
- serious criminal matters
- some family matters
- young offender charges
What Can A Lawyer Do For Me?
A lawyer can give you legal advice and opinions. You can expect your lawyer to:
- answer your legal questions or know where to find the answer
- give advice about your legal problem and the possible outcome
- advise you of possible defence to criminal charges
- keep you informed about what's happening with your case
- represent you in court, if necessary
- keep your file confidential
How Should You Prepare To Talk With A Lawyer?
Prepare to spend your time wisely. Here are a few suggestions to help you get organized:
- Answer the lawyer's questions thoroughly. Tell the good and bad. It's important the lawyer gets all the important facts. Remember a lawyer will not reveal any information without your permission.
- Bring any documents and agreements that you think are relevant to the case. This will help the lawyer understand your story. You may consider making a few notes to yourself on paper beforehand. If your are nervous or upset during the first meeting you may forget important details.
- Ask questions that will help you understand. You might want to ask:
- is my case a strong one?
- how long will it take?
- how can I keep costs down?
Take notes of anything the lawyer tells you. After the first meeting it might be a good idea to write to the lawyer stating your understanding of the case, the procedure and fee. If there are any misunderstandings then your lawyer will reply.
If there is a language barrier ask a court worker to arrange for an interpreter or just bring along a relative or friend to help you understand.
Can I Change Lawyers?
Yes. If you are not satisfied you can change lawyers. Once you have paid your bill you have the right to get your file and all documents in it. Changing a lawyer can cause delays and extra costs. If you are unhappy with the first lawyer, talk to him/her first. You may be able to work out the problem without having to change lawyers.
What If I Am Dissatisfied With The Lawyer Or Service?
If you feel the lawyer has misled you by not giving you all the information about your file; neglected your file or made mistakes that are damaging your case; not done as you instructed or requested; acted unprofessionally, such as telling other people about the facts of your case; then you can make a formal complaint about the lawyer to the Law Society of the Northwest Territories.
What About The Fees?
Lawyers charge differently for different services. You can shop around for a lawyer just as you can for any other service. Many lawyers will ask you to pay part of the fee, called a retainer, before he or she begins work.
At the first meeting talk to your lawyer about:
- how you will be charged
- paying out of pocket expenses such as photocopying, telephone calls or postage
- what the total cost of the service will be
Never be afraid to ask the cost of a lawyer's services. Discuss arrangements about how you plan to pay the bill. Whatever arrangements you make to pay the lawyer, get it in writing.
The Law Society of the Northwest Territories publishes a pamphlet entitled "Understanding Your Lawyer's Fees".
What If I Am Dissatisfied With The Bill?
If you think the bill is unreasonable you should first discuss it with the lawyer. He/she will explain charges which you might not have understood. If you still disagree you can have the account taxed by a Clerk of the Supreme Court of the NWT. You can phone the Supreme Court in Yellowknife (920-8759) to ask how to have a lawyer's fee taxed.
How Do I Find a Lawyer?
- ask friends, co-workers or relatives
- look in the Yellow Pages of the phone book
- call the Lawline (1-403-873-3130) or the local legal aid clinics in your area
- call a court worker in your area
- call the Lawyer Referral Service
Going To Court
When Do I Go To Court?
Once a person in charged he is given a date for his first court appearance. This may be in either Justice of the Peace (JP) court or Territorial Court. However, you do not have to go to court then, only the accused person does.
What Happens On A First Appearance?
If the person's first court appearance is in JP Court, the case may be adjourned to Territorial Court. Justices of the Peace presently hear assault and other less serious charges. The more serious assault and sexual assault cases are heard by the Territorial Court. The plan for the future is for Justices of the Peace to hear more serious cases than they do now.
What Is A Plea?
On his first appearance in Territorial Court, the accused will be asked how he pleads to the charge - either guilty or not guilty.
He can also ask for an adjournment to speak to a lawyer before deciding how to plead. This request is usually granted.
If he pleads guilty, there is usually no reason to hold a trial. By pleading guilty, he is admitting he did what the court accused him of doing. The court has only to accept the guilty plea and decide what the sentence will be. However, even though he pleads guilty, the accused may not agree with some of the facts of the case which the Crown is proposing to present in court. In these cases there may have to be "trial on the facts" so the Judge can determine exactly what happened, and you have to testify during this "trial on the facts".
If the accused pleads not guilty, he is denying that he is guilty of what he is accused of doing. It will then be necessary to hold a trial to determine whether or not he is guilty of the crime.
What Is An Election?
The accused has a choice of what court he wants his case heard in. It can be in Supreme Court with a Judge, or Supreme Court with a jury, or in Territorial Court. If the Crown Prosecutor decides it will be dealt with by summary conviction (usually if it is a less serious offence), the accused has no choice of court and it will be dealt with in Territorial Court or perhaps J. P. Court. If it is a more serious charge, the accused has the choice of what court his case will be heard in. This choice is called the "election" of the accused.
If he decides to have his trial in Territorial Court, a trial date will be set, with no preliminary inquiry. The more serious the charge is, the more likely it is the accused will elect to have a trial in Supreme Court. If he decides to have his case heard in Supreme Court, a date for a preliminary inquiry in Territorial Court will be set.
Peace Bonds & Restraining Orders
What is a "Peace Bond"?
A Peace Bond is a promise, enforceable under the Criminal Code of Canada, to keep the peace and be of good behaviour and to obey all other terms and conditions Ordered by a Judge or Justice of the Peace (“JP”), for period of up to twelve (12) months. Judges and JP’s may impose reasonable conditions on those who are subject to the Peace Bond, for example: restrictions on contact with other persons, restrictions on attending certain places, restrictions on possessing firearms and ammunition.
How is a peace bond obtained?
The procedures for obtaining a Peace Bond are contained in the Criminal Code of Canada.
The “test” for obtaining a Peace Bond is that the Applicant must have reasonable grounds to fear that another person may cause personal injury on him or her, their spouse, common-law partner or child, or that such person will damage his or her property; or that another person may commit an offence, including sexual offences, against another person who is under fourteen (14) years of age. Also, if you are a participant in a court proceeding (a juror or witness) and have a reasonable belief that someone is trying to influence you or affect the proceedings through intimidation, acts of violence or threats, you may apply for a Peace Bond.
In any case, where there is an immediate threat or obvious danger to anyone, the RCMP should be contacted immediately.
Otherwise the Applicant may attend before a Justice of the Peace (a “JP) or a Judge and swear, under oath, to the circumstances giving rise to the “fear” (the document containing the oath is called an “Information”).
If the Information is sworn before a JP, the JP will then cause the “Accused” person to attend a hearing at which the Applicant and the Accused may then give testimony under oath. The JP will then decide if a Peace Bond will be made.
In some cases, whether the Information will be brought before a Judge is decided by Crown Counsel (Department of Justice, Canada) who represents the Attorney General of Canada. If Crown Counsel decides to do so, the Information is placed before a Judge and the Judge may direct the making of a Peace Bond based on evidence produced by Crown Counsel, including evidence of the Applicant given under oath, in person. The person against whom the Peace Bond is sought to be made, may also be required to attend before the Judge. If that person does not attend Court in response to the summons, the Judge may issue a Peace Bond based on the evidence presented by Crown Counsel. If that person does attend Court, he or she will be permitted to defend against the making of the Peace Bond by presenting evidence under oath, also.
What happens if a Peace Bond is not obeyed?
If a person disobeys the condition to keep the peace and be of good behaviour or any other condition made by the judge, he or she may be imprisoned for up to twelve (12) months.
How long does a Peace Bond remain in effect?
A Peace Bond may be in effect for up to twelve (12) months. If the circumstances giving rise to the Peace Bond continue after twelve months, a new application for a peace bond must be made by the Applicant.
Who Can I Get A Peace Bond Against?
You may apply to obtain a Peace Bond against anyone to whom the “test” (above) applies, including a spouse, common-law spouse, boyfriend/girlfriend or person whose name is unknown to you.
What is a "Restraining Order"?
A Restraining Order is an Order made by a Judge in a civil proceeding, requiring that a person refrain (stop) having contact with another person or persons. Restraining Orders may also impose other restrictions on the person who is subject to the Order, for example, preventing a person from attending certain places and, possibly, refraining from the use of alcohol in certain circumstances.
How do I get a Restraining Order?
Restraining Orders may be made in court proceedings that have already been commenced, for example in Divorce, child custody, child support or child access proceedings. The commencement of court proceedings and an application for a Restraining Order is a complex, civil legal procedure and Applicants should seek legal advice before attempting such proceedings on their own.
However, if you are involved in a civil dispute of any kind and believe that you or someone else is in immediate or obvious danger, you should contact the RCMP immediately.
What is the difference between a "Peace Bond" and a "Restraining Order"?
here are important procedural differences.
A “Peace Bond” can be obtained by swearing an Information in front of a JP or a Judge. Subject to cases where Crown Counsel may decide whether to proceed with a hearing (above), a hearing will take place and a decision will be made.
A “Restraining Order” can be obtained by commencing a civil proceeding in a Court and then making an application in the manner prescribed by the Court’s Rules of civil procedure. Such proceedings involve the preparation of documents, giving notice to other persons and costs to the Applicant. Legal advice is essential to such proceedings.
When a “Restraining Order” is disobeyed, the Applicant must normally make yet another application before a Judge, to enforce the Order. Again the Rules of civil procedure apply and additional costs are involved. Usually the RCMP will not get involved in the enforcement of a “Restraining Order” unless there is an immediate threat of violence or danger. It is extremely rare that a criminal charge is laid for disobeying a civil Court Order (although it is possible, under the Criminal Code of Canada).
Restraining Orders can be very helpful in the context in of ongoing Court proceedings however they may not be as efficiently and economically obtained as a Peace Bond. If you have any doubt about which process is suitable to your particular situation, you should consult a lawyer.
The Preliminary Inquiry
What Is A Preliminary Inquiry?
A preliminary inquiry is a pre-trial hearing held in the Territorial Court. Its purpose is to determine if there is enough evidence to warrant having an accused person stand trial. It gives the accused person and his lawyer an opportunity to find out what kind of evidence the police have against him. It is also called a preliminary hearing. If the judge decides there is enough evidence to put the accused on trial, his case will be sent to the Supreme Court for trial. A trial date will be picked in the near future, but it could be several months before the case actually comes up for trial in the Supreme Court.
What Happens At A Preliminary Inquiry?
A preliminary inquiry is much like a trial. Most of the rules about the conduct of a trial apply to a preliminary inquiry as well.
Will Information About The Preliminary Inquiry Be In The Newspapers On The Radio?
Probably not. There is usually an order preventing any publication or broadcast of evidence from a preliminary inquiry (and also from a show cause hearing). When this happens, the only thing that can be reported in the press is whether the accused was ordered to stand trial or the charges were dismissed.
Can The Accused Change His Plea After A Preliminary Inquiry?
Yes. If a change in please is accepted by the court, the case proceeds to sentencing, without the necessity of a trial.
After hearing the evidence at a preliminary inquiry, the accused person's lawyer, called the Defence Counsel, offers to have his client plead guilty, sometimes to a lesser charge. For example, he may think that the Crown can only prove that his client is guilty of simple assault, when he has been charged with assault causing bodily harm. He and the Crown may agree to accept a guilty plea to the lesser charge of simple assault. This is called plea bargaining. It avoids the expense and delay of a trial. If this plea is accepted by the judge, the case goes directly to a sentencing hearing without trial.
Sentencing & Appeals
What Happens After The Decision?
If the accused person is acquitted, or found not guilty, the case is over, the charges are dismissed and he is free to go.
If he has been found guilty, or convicted, a sentencing hearing must be held. It may take place immediately after the trial, or there may be an adjournment to another court date. If it is adjourned, it is usually for the purpose of obtaining a pre-sentence report.
What Is A Pre-sentence Report?
A pre-sentence report is a report prepared by a social service worker for the court. It gives the court a great deal of information about the accused person, his personal and financial circumstances, employment and attitude towards the offence and the victim. It may also state what impact the assault had on the victim, and how it has affected her life. This is all information the Judge needs to know in deciding what sentence to impose.
Will I Have To Testify At The Sentencing Hearing?
Not usually, however it is important that the police and Crown know of the effect the assault has had on your life, so they can tell the Judge. This is especially true if a pre-sentence report has not been ordered. You might also have to testify at a "trial on the facts".
What Things Does The Judge Consider In Sentencing?
They consider a number of factors, including:
- the seriousness of the assault
- whether you were injured, physically or emotionally
- the criminal record (if any) of the accused, particularly for assaults
- whether your offender is working
- whether you and the offender have reconciled
- whether the offender is supporting anyone, in particular children
- the maximum possible sentence
- whether the offender co-operated with the police
- whether the offender is remorseful
- whether the offender pleaded guilty at the first opportunity
What Are The Possible Sentences?
Sentences vary from offence to offence. The Judge can order that the accused go to jail or pay a fine. Jail is not usually ordered for a first offender who has committed a relatively minor assault. Fines are almost never given for serious sexual assaults. Jail sentences of ninety days or less may be served intermittently, such as on weekends. This is most likely to be ordered if the accused is working and will lose his job as a result of missing work by going to jail. When a person is given a fine he is usually given a certain amount of time to pay. If it is not paid by that time, he is ordered to serve a specified period of "default" time in jail. Extensions of time to pay fined can sometimes be granted if the offender has a good reason for requesting one.
As an alternative to imposing a fine or a jail sentence, the judge may give a suspended sentence. This means the offender is placed on probation for a certain length of time, with conditions attached. These conditions may include reporting to a probation officer, doing community service work; avoiding communication with the victim; and seeking treatment for alcoholism.
The judge may also grant an absolute or conditional discharge. A discharge means the person has no criminal record. A conditional discharge has a probation order attached, while an absolute discharge does not. Discharges are not available for offences where a conviction could result in a maximum sentence of 14 years or more in jail. They are usually only granted for minor offences committed by first offenders.
Can A Conviction Or Sentence Be Appealed?
Yes. The offender can appeal both a conviction and his sentence. The Crown can appeal a sentence which it thinks is too low. The Crown can also in some instances appeal an acquittal.
The victim does not have the right to appeal either an acquittal or a sentence.
When Must An Appeal Be Made?
Usually, an appeal must be started within 60 days of the sentence being passed. In the case of a summary conviction (maximum penalty a fine of $2,000.00 and six months in jail) the appeal must be made within 30 days of the sentence being passed.
Why Have A Trial?
If a person has pleaded not guilty, it is necessary to have a trial to determine whether the Crown can prove his guilt beyond a doubt.
Who Decides Whether He Is Guilty?
If the case is being heard by a Supreme Court Judge and Jury, the jury decides whether he is guilty, and if so, of what. In all other trials, this is decided by the judge presiding at the trial. The jury is a group of twelve people picked from the local community. Their job is to decide if an accused person who has chosen a jury trial is guilty or not guilty. The jury never decides on the sentence. This can only be decided by the judge.
How Is A Courtroom Set Up?
Only a few communities in the NWT (Yellowknife, lqaluit, Hay River, lnuvik, Fort Smith and Rae) have formal courtrooms. In the other communities, school gymnasiums, Hamlet Council chambers and community halls are used as make-shift courtrooms.
The witness sits at the front of the courtroom, near the judge, while giving evidence.
If there is a jury, it sits to one side, between the judge and the lawyers, facing the centre of the courtroom.
The courtworker helps the defence lawyer in preparing the case of the accused person. He or she sometimes sits with them at the defense table to interpret if the accused does not speak English or French. If there is no interpretor, there is no trial.
An interpreter is used to interpret the evidence of any witness who does not speak English or French, as well as interpreting for the accused or member of the audience who request translation. The interpreter sometimes sits near the court clerk.
The public sits behind the lawyers facing the judge. This includes the victim and any witnesses who have already given evidence. Usually witnesses who have not yet given evidence must remain outside the courtroom. This is to prevent their evidence being influenced by that of other witnesses.
What Happens At A Trial?
If the case is being heard by a judge and jury, first a jury must be selected. Then, the Crown Prosecutor summarizes to the court what he or she hopes to prove in the trial. Witnesses are asked to give their evidence (answer questions) for the Crown. As these questions are asked by the Crown and are intended to prove the Crown's case, it is called evidence for the Crown. After each witness answers the Crown's questions, she may be questioned by the lawyer for the accused person as well. This is called cross-examination.
After the last crown witness has given evidence, the lawyer for the accused may call witnesses to testify, including the accused person. The accused person does not have to testify, however, as it is the responsibility of the Crown to prove that he committed the crime. It is not the accused person's responsibility to prove that he did not commit the crime. Thus the Crown cannot make the accused person testify. That decision is solely up to the accused and his lawyer. If he does decide to testify, however, the Crown prosecutor can cross-examine him on his evidence.
Do I Have To Testify?
Usually, yes. Your evidence will be very important here in determining whether the case should proceed or whether the charges should be dropped because the Crown does not have enough evidence to prove its case. If your husband has been charged with assaulting, or sexually assaulting you or a child under fourteen, you have to testify. This is also true if the accused is your common-law spouse.
What Happens If I Refuse To Testify?
If you have been subpoenaed as a witness, you must testify in court, even if it is your husband or common-law husband who is on trial. Otherwise, you can be charged with contempt of court. If you are afraid to testify, or have any other questions about testifying, you should talk to the Crown Prosecutor or a lawyer about this.
How Will I Learn When The Trial Is?
You will receive a piece of paper called a subpoena telling you when and where to come to court and testify. As well, the Crown Prosecutor or the police will probably be in touch with you before the court date, to review your evidence with you. Tell the Crown Prosecutor any concerns you have about testifying.
What Happens If I Don't Come To Court?
You can be charged with failure to appear, the same as a person who is accused and does not come to court. Do not be late for court.
What Can I Be Asked About?
You will be asked mostly about what happened the day of the incident which gave rise to the charges, though you may be asked about other things like your relationship with the accused. If the charge is one of sexual assault, you will not normally be asked about your previous sexual behaviour with anyone, including the person on trial. If the Defence Counsel wishes to ask you such questions, he or she must get the permission of the trial judge to do so, and this will only be granted in certain circumstances. The defence lawyer can apply for this permission either during the trial, or before it starts.
What Happens When I Give Evidence?
YUsually the victim of an assault is the first person to give evidence. You will go to the front of the courtroom, near the judge, and swear to tell the whole truth and only the truth.
Then the Crown Prosecutor will start asking you questions about what happened.
If you do not understand what a question means, be sure to say so. Do not attempt to answer a question which does not make sense to you.
After the Crown Prosecutor has finished asking you questions, the Defense Counsel will ask you questions. This is often harder, as you will not know in advance what questions he plans to ask you.
In a sexual charge, the basis for the defense is often that the victim consent to the sexual contact, or at least the accused believed there was consent. If you did not fight back, be prepared to be asked why you did not do so. If it was because you feared provoking and even more violent assault, simply say so. Above all, remember that you are not the person on trial. The accused is. Your only role is as a witness for the Crown. It is not your responsibility to prove anything. That is the Crown Prosecutor's responsibility. Your only responsibility is to tell the truth about what happened.
What About Physical Evidence?
If there is any physical evidence of the assault (torn clothes, medical evidence, photographs) it will be shown to the judge during your testimony (or oral evidence) and that of other witnesses. You may be asked to identify some of these pieces of evidence.
Physical evidence helps to prove an assault case but is not always necessary. It is possible to prove an assault just on the basis of the testimony of the victim.
Will My Name Be In The Papers?
If the person on trial has been charged with a sexual assault the Crown will usually ask for an order that your name not be printed in the newspapers. If the Crown doesn't ask for this order, you can make the request yourself - If this order is requested, it will be granted. In other assault cases, which are not sexual assaults, however, your name may be published.
What Happens After The Evidence Is In?
After the defense witnesses (if any) have given their evidence, both lawyers make their arguments, or submissions, to the judge or jury. In turn, they argue whether the accused ought to be found guilty of the offence he is charged with or some lesser included offence (a similar offence which is less serious). They may also argue that the accused is not guilty of any offence. If the accused has called evidence, the accused's lawyer goes first.
What Happens After The Submissions?
The judge (or jury, if it is a jury trial) decides whether the accused is guilty of the offence with which he is charged; guilty of a lesser included offence; or not guilty.
If the case is being hear by a jury, they will leave the courtroom to discuss the case, and return when they have made a decision. Their decision must be unanimous. If they cannot agree, no finding of guilt or innocence can be made and a new trial may be ordered. The jury decides only whether the accused is guilty or not. The sentence is always decided by the Judge.
In order to convict someone, the Crown Prosecutor must prove beyond a reasonable doubt that the accused person is guilty of the crime he is charged with. If there is any reasonable doubt as to his guilt or innocence, he must be found not guilty. Any doubt about guilt is always resolved in favour of the person on trial. A decision to acquit the accused does not necessary mean that the judge or jury did not believe your evidence. It may simply mean that they did not think there was enough evidence to find the accused guilty beyond a reasonable doubt.
Understanding Your Lawyer's Fee
Some people avoid going to a lawyer because they fear it costs too much. Others go but don't ask about fees because they think it is improper to do so.
There's nothing mysterious, or secret about a lawyer's fee. It's your money and you have the right to know how you will be charged, how much it will cost, and when you have to pay.
Do not delay or avoid getting legal advice because you are afraid of the cost. You may jeopardize your legal rights and it may cost you more in the long run.
What You Are Paying For
When you hire a lawyer, you are buying his or her time, experience and skill. The more time you use, the more it will cost. However, there are steps you can take to keep your costs down.
Methods Of Calculating Your Lawyer's Fee
There are no set schedules on how lawyers must charge. The method of calculating fees may vary with each lawyer and with different types of legal services. Here are the most common methods:
- FIXED FEE
If you hire a lawyer to provide a routine service, the lawyer may be able to quote a flat fee regardless of how much work or how many court appearances are involved. A lawyer will use this method only when he or she can calculate fairly accurately how much time will be required.
- HOURLY RATE
Sometimes a lawyer cannot predict, in a particular case, how much time will be required. For example, a complicated lease or dispute over the custody of a child may get very involved. In those situations your lawyer may keep a record of the time spent on the case and charge you an hourly rate. If the case involves a court trial, your lawyer may set a daily trial rate.
- PERCENTAGE FEE
Sometimes fees are calculated as a percentage of the value of the subject matter. This approach is often used when probating an estate or collecting debts.
- CONTINGENT FEE
You may have a fairly strong case, but you have no funds to pay your lawyer at the beginning of the case.
For example, you may have been injured in an automobile accident or you may be suing a doctor for negligence. Your lawyer may agree to act for you and take as his or her fee a percentage of the award which you eventually receive.
If you win, the lawyer gets a fee; if you lose, the lawyer gets nothing. Usually, you are responsible for paying disbursements regardless of whether you win or lose.
The percentage will vary depending on the amount of your claim, the degree of risk involved, and at what stage in the proceedings the case is resolved. A contingent fee agreement must be in writing.
- LUMP SUM FEE
Some services don't fit conveniently into any of the above categories and at the end of a case the lawyer and the client are able to agree on a lump sum fee which fairly reflects the amount of time spent by the lawyer and other relevant factors mentioned above.
Factors Your Lawyer Considers In Calculating The Fee
In deciding what fee, rate or percentage to charge, your lawyer will take into account the following facts:
- the extent and character of the services to be rendered
- the labour, time and trouble involved
- the character and importance of the matter
- the amount of money or value of property involved
- his or her professional skill and experience
- the results achieved
Some special terms:
When you first discuss your case with your lawyer, he or she will usually ask for a retainer. This is a sum of money which will be deposited in the lawyer's trust account as a credit against the services he or she will perform and expenses to be incurred on your behalf. As the case proceeds the lawyer will submit accounts to you and will debit your account accordingly.
These are out-of-pocket expenses such as court filing fees or expert reports which the lawyer makes on your behalf. You are responsible for them and, unless they are deducted from your retainer, you will be billed for them as they arise.
When a case goes to court, the judge will normally award "costs" to the successful party. So, if you win, the losing party will be required to pay part of your lawyer's account; the amount is calculated according to a fixed schedule. Normally the schedule will allow only part of your lawyer's total account, and you are responsible for the balance. If you lose the case, you will have to pay all your own lawyer's fees and a portion of the successful party's legal fees.
Discussing Fees With Your Lawyer
During your first appointment with your lawyer, your should quite openly discuss and settle:
- how you will be charged (a fixed fee, an hourly rate, a contingent fee or a lump sum fee)
- what the fee, rate or percentage will be
- what the total cost of fees and disbursements will be, or at least an estimate
- when you will be billed (a retainer, each month, prior to trial or out of the proceeds)
Whatever you agree upon, get it in writing. Then both you and your lawyer will know exactly what you have agreed to and it should avoid disputes later on.
Ways To Keep Your Legal Costs Down
Since you are buying your lawyer's time, the less you use the less it will cost. Here are some tips:
Before going to see your lawyer:
- get all your papers and documents in order
- write out a chronology of events
- note the names and addresses of witnesses
- write out the issues upon which you want advice
When You Talk To Your Lawyer
- stick to the facts
- tell your lawyer all the facts, good and bad
- ask questions if you don't understand the advice you are given
- ask how you can assist to speed up the case and reduce your costs
- ask your lawyer to keep you informed of developments in the case
After You've Talked To Your Lawyer
- don't make unnecessary phone calls to his or her office
- except in emergencies, write to your lawyer instead of calling
- if you must call, talk to your lawyer's secretary first
- be realistic about matters in dispute (don't spend $500 on legal fees to recover a $200 TV)
If You Are Unhappy With Your Lawyer's Account
First, discuss it with your lawyer. There may be a genuine misunderstanding about what he or she had to do to resolve your legal problem.
If you are still not satisfied,then you can apply to the Clerk of the Supreme Court to have the account reviewed. For more information you may contact the Clerk at (867)920-8760.