Keeping Your Charges Private
Release from Police Custody
Resolving Shoplifting Charges
Vulnerable Sector Screening
Consequences of a Criminal Record
Elements of a Crime
1. Getting Legal Advice
The most effective way to protect your rights if you have been criminally charged is to hire an experienced lawyer to represent you. The criminal justice system can be complicated, and overwhelming, and legal counsel can assist in guiding you through the process.
There are generally two ways to avoid a criminal record. The accused can take the case to trial in an attempt to get an acquittal by presenting a defence to the allegations or by arguing that the Crown has not met the burden of proof. Alternatively, the accused can also negotiate a plea deal without a criminal record with the Crown. In either case, a lawyer will be able to guide you through the process, ensure your rights are protected, and present all relevant defences.
An accused who takes the trial route runs the risk of being convicted at trial. If convicted at trial, the accused may still avoid a criminal record if the sentencing court awards a discharge. As outlined below, an accused who is convicted may be granted an absolute or conditional discharge if the court believes it is in the best interest of the accused and not against the public interest.
If you have been arrested and charged and wish to avoid a criminal record, hiring a lawyer is one of the most effective ways to accomplish that goal. A lawyer can advocate on your behalf and advance every relevant defence available.
Donich Law has experience defending individuals charged with everything from simple assault to serious sexual offences involving children and routinely receive favourable outcomes either through Crown negotiations or litigation.
Alternatively, where a peace bond is not available, an accused may be granted diversion for more minor offences. A diversion program generally requires the accused to complete certain conditions including attend counseling, paying restitution to the victim, or writing a letter or apology. After the conditions of the diversion program have been completed the Crown will agree with withdrawal the charges against the accused.
3. Peace Bond
An accused charged with more minor offences who wishes to avoid a criminal record may enter into a peace bond. A peace bond is essentially a contract an accused person enters into with the court promising to be of good behaviour and abide by certain conditions, usually for a period of one-year. The accused will pledge money against the peace bond and if they breach any of the conditions will be required to forfeit that money to the court. A peace bond does not require an admission of guilt on the part of the accused, it only requires that the accused agrees to abide by the conditions of the bond.
Typical conditions attached to a peace bond include keeping the peace and being of good behaviour, refraining from attending any location named in the order, refraining from contacting, either directly or indirectly, any individual named in the order, appearing before the court when required, and refraining from owning or possessing any weapons.
Where diversion is not available, an absolute or conditional discharge may be available and help the accused avoid a criminal record. An absolute discharge is a finding of guilt but is considered a non-conviction. The discharge will remain on the offender’s criminal record for one-year, after which time it will automatically be sealed in the RCMP database.
A conditional discharge is a finding of guilt but is considered a non-conviction. A conditional discharge requires the offender to abide by conditions for between one and three years. Essentially, the offender is placed on a period of probation. A conditional discharge will appear on the offender’s criminal record for three years, after which it will automatically be sealed in the RCMP database.
Absolute and conditional discharges are only available where the accused is charged with an offence for which the maximum penalty is less than fourteen years imprisonment. The court will grant a discharge where they are satisfied that doing so is not against the public interest and would be in the best interest of the accused.
5. Record Suspension
The reality is, in some cases avoiding a criminal record is just not possible. Where an accused individual is charged with a large number of offences, or with very serious offences and the Crown possess evidence that is difficult to refute, a criminal record may be inevitable.
Fortunately, many Canadian’s with a criminal record are eligible for a record suspension, formerly known as a pardon, after a specified waiting period has elapsed after their conviction. Specifically, those convicted of a summary conviction offence may apply for a record suspension five years after the expiration of their sentence. This means that if an offender was sentenced to a period of incarceration followed by a period of probation, they would be eligible for a record suspension five years after the date their probation order expires. Those convicted of an indictable offence are eligible for a record suspension ten years after the expiration of their sentence.
In addition to the waiting periods, to be eligible for a record suspension an individual must not have been convicted of a Schedule 1 Offence which includes sexual offences against children. An individual will also be ineligible if they have been convicted of more than three indictable offences each with a prison sentence exceeding two years.