O'BRIEN LAW OFFICE

Criminal Defence Lawyer

Accused

The person who has been charged with a criminal offence and is being prosecuted. 


Acquittal

An acquittal is a verdict of "not guilty" after a trial. The Crown has not proven beyond a reasonable doubt that the person accused of a crime is guilty.


Appeal

An appeal is a formal request to review a lower court's decision (i.e. a verdict of guilt). In some cases, an accused must apply for leave to appeal.


Bail

Bail or “judicial interim release” is the release of an accused person from custody while the charges remain outstanding. 


Bail Application/Bail Hearing

A court hearing during which a judge decides if an accused person should be released from custody on bail, pending resolution of the case. In Manitoba, bail hearings are informal and relatively quick, consisting of oral arguments by the Crown and the defence, followed by the judge's decision. Most accused appear by video from the Winnipeg Remand Centre.


Bail Review

If an adult is denied bail then he or she can bring an application for bail review to the Court of Queen’s Bench. A material change in circumstances of the accused or an error in law by the lower court or the expiry of a mandatory review period is necessary in order to bring the application for bail review.


Bail Variation (changing/removing bail conditions)

If bail conditions become impossible to honour, there is a mechanism by which one can seek to change the conditions. There are two ways: 1) with the Crown's consent; 2) by conducting a contested hearing.

The bail variation process in Winnipeg is carried out through paperwork, and not in court in court. An accused seeking a bail variation should attend the Winnipeg Law Courts at 408 York Ave and go to the 100D counter to request a bail variation application form, which must be filled out and submitted to the Crown Attorney's Office.  


Breach

Breach is a legal term meaning "did not obey". Breaching a court order is a criminal offence and is probably the single most common charge in the criminal justice system. Courts do not take lightly allegations or findings of guilt for violations of court orders.


Charter of Rights

The Charter of Rights and Freedoms is a part of the Constitution of Canada. It is the supreme law of Canada. All Canadian legislation must conform to its principles. The Charter guarantees certain rights and freedoms including: the right to trial without unreasonable delay, the right to a reasonable bail, the right to be free of unreasonable search and seizure, the right to counsel, the right not to be arbitrarily detained, and the right to silence.


Conditional Sentence ("House Arrest")

A conditional sentence is a jail sentence that is permitted to be served in the community. While it may sound contradictory to serve a jail sentence in one's home, the conditions imposed are strict, usually forbidding any departure from one's residence except for work or to obtain the necessities of life.

Parliament has recently made "CSOs" much harder to obtain than they used to be. They are not available where there is a mandatory minimum jail sentence, where the sentence is two years or more, nor for several indictable offences (particularly violent offences).


Conviction

A conviction is the finding of guilt, beyond a reasonable doubt, and the entering of a criminal record. This record is held by the RCMP forever. In some cases, one can apply to "seal" the record. This process is now called a record suspension (formerly pardon).


Discharge

There are two types of discharges: absolute and conditional. Neither type of discharge constitutes a criminal record. This is because although the court makes a finding of guilt, no conviction is entered against the accused. There is therefore no record of conviction. It is the record of conviction that constitutes a "criminal record." There are no conditions attached to an absolute discharge. Three years following the absolute discharge, the discharge is automatically expunged and essentially becomes the equivalent of a pardon.

A conditional discharge becomes absolute after the expiry of the conditions ordered by the court. These conditions, that can be can be virtually anything that the court deems appropriate, are generally the same sorts of conditions that might be attached to a less serious peace bond or a more serious probation order. Discharges must not be contrary to the public interest and must be in the interest of the accused person. In addition there must be no minimum sentence applicable to the offence in order to qualify for a discharge.


Diversion

Diversion is a method of resolving a case by having the accused person accept responsibility for his/her conduct and performing some community service, making a donation, attending counseling, writing a letter of apology or some combination of those or other good deeds. Once the good work is done to the satisfaction of the Crown, the charge is typically stayed. This is almost invariably a desirable result for an accused person but it does involve that person accepting responsibility for the offence. If an accused is not able to do that, then diversion is not a suitable option. There is no criminal record after successful diversion.


Fine

A fine is a payment of money to the government as part of a sentence. It is one form of entry onto a criminal record. A fine can sometimes be paid over a period of months depending on the convicted person's ability to pay.


Indictable Offence

An indictable offence is one which corresponds to the English or American classification of felony. These are considered to be more serious crimes and the penalties increase accordingly. The accused person is however afforded the advantage of having a preliminary hearing if he/she so chooses. After the preliminary hearing, if it is determined that there is enough evidence to send the accused person to trial, the defence has a choice of whether to have a trial by judge alone in the Court of Queen’s Bench, by judge and jury of the Queen’s Bench or by judge alone in the Provincial Court.


Indictment

An indictment is the piece of paper which particularizes the charge once a matter has been committed to the Court of Queen’s Bench.


Information

An information is a paper which particularizes the charge in the Provincial Court of Manitoba. It is also the name of papers sworn to obtain warrants.


Intermittent Sentence

If the period of jail is 90 days or less, then an intermittent sentence may be imposed. This is a jail sentence typically served on the weekends to allow the inmate to attend work during the week. Sentences beyond 90 days cumulatively cannot be served intermittently.


Jail

Jail is the imposition of confinement at a correctional institution. If the period of jail is less than two years, it will be served at a provincial detention centre. If the period of incarceration is two years or greater, than the term of incarceration will be served at a federal prison.


Judge

A judge is a magistrate of the Provincial Court empowered to hear trials or preside over preliminary hearings, bail hearings, and supervise the court process.


Justice

A justice is a magistrate of the Court of Queen’s Bench empowered to hear criminal and civil trials.


Judicial Justice of the Peace

A Justice of the Peace is a magistrate empowered to preside over weekend bail hearings, “after-hours” bail hearings, and traffic court.


Peace Bond

A peace bond is a court order where a person promises to abide by conditions. It does not involve an admission of guilt. Rather, one must simply not oppose the imposition of the order because there are reasonable grounds to believe that the complainant feared for their safety or the security of their property at some point in the previous six months.

Typically a peace bond is entered into in exchange for the staying of criminal charges. The accused person promises to keep the peace and be of good behaviour for the period of the bond, usually 12 months. Other conditions can be attached to the bond as well, including not to have contact with a certain person.

The person entering the bond is required to pledge an amount of money that might be forfeited if a term of the bond is breached. A peace bond does not involve a criminal record. Failure to follow the terms of the bond or an accusation thereof is a new criminal offence.


Preliminary Inquiry

A preliminary inquiry is a hearing to determine if there is sufficient evidence to commit an accused person to be tried on the charge. The test can be found in the Supreme Court of Canada case U.S.A. v. Sheppard. A preliminary inquiry feels like a trial. There is a judge presiding over the hearing. Evidence is lead by the Crown. Sometimes there are disputes with regard to leading questions.

Ultimately, the judge must satisfy himself or herself whether there is any evidence, if it is believed, upon which a properly instructed jury, could convict? If the answer is yes, then the accused is committed on that count. If not, they are discharged and do not have to stand trial on that count. That count is treated as legally extinguished.


Pre-Sentence Custody

Also known in Manitoba as "Time in Custody" or "TIC" or "deal time", pre-sentence custody refers to the time an accused person spends in jail before being sentence for their offences. Conditions in remand facilities are often harsh and lack programming for inmates. The time served does not count towards early release on parole or remission (hence the term "dead time"). Credit for dead time has been a contentious issue in recent years: it used to be given on a 2-for-1 basis, until Parliament restricted it to 1-for-1, or "if the circumstances justify it", 1.5-for-1. The Supreme Court has recently ruled that serving dead time is in and of itself a circumstance justify 1.5-for-1 credit.


Pre-Trial Coordinator

A Pre-Trial Coordinator, or "PTC", is a magistrate who presides over remand courts for cases that are in their early stages and not yet ready to be set down for hearing. If you are released with a court date, it is highly likely you will make your first appearance in "PTC Court".


Probation

Probation is intended to be a rehabilitative rather than a punitive tool. Many conditions of probation may be imposed such as: abstain from drinking alcohol; refraining from contacting certain person(s); refraining from being within 200m of a certain location, etc. There can also be a condition to report to a probation officer. This allows the probation officer to supervise the probation and compliance with the conditions of probation including attendance at the probation office.


Promise to Appear

When arrested you may be released on a promise to appear, which is a paper which you will be asked to sign stating a date when you are to attend court. Typically there is also a promise to appear at the police station in order to be finger printed. Although people quite often take offence to having their finger prints taken, it is of extreme importance that you attend to have them taken at the appointed time. If you do not attend, you will be charged with failure to appear for prints, for which the Crown quite often seeks a jail sentence.


Stay of Proceedings

A stay of proceedings is the stoppage or suspension of the proceedings against the accused without a determination of the merits of the case. In other words the charges are "dropped". The case is stopped before an acquittal or conviction is entered. A stay can either be entered by the Crown Attorney, or by the Court after a Charter Application. 


Summary Conviction Offence

A summary conviction offence is one which corresponds to the English or American classification of misdemeanor. This is considered to be a less serious offence although it is still criminal in nature. Consequently, potential penalty is less and there is a 6 month limitation period on charging a person after the offence is alleged. There is no preliminary hearing afforded a person charged with a summary conviction offence and trial must be held in the Provincial Court of Manitoba. The accused will be tried by a judge alone and will not have a jury.


Sureties

A surety is a person who will act as a supervisor. Someone who will ensure that the accused person attends court, does not breach his/her conditions of release, and does not commit new offences. A surety is typically asked to pledge a sum of money (known as a bond), that he or she understands will be forfeited, if the duties of a surety are not upheld.


Suspended Sentence

A suspended sentence is a sentence where no further action is taken except for (typically) probation, which is either supervised or unsupervised. The penalty is the criminal record entry itself. 


Trial

Trial is the final (except for Appeal) step in the life of a criminal offence. The trial is where the Crown attorney calls witnesses who give testimony against the accused. Those witnesses are cross-examined by the defence lawyer. Most evidence is given verbally. The defence then has an opportunity to call evidence if it so chooses. After hearing the evidence the judge, in the case of a trial by judge, will decide what facts it believes, what law prevails, and as a consequence, what verdict will be rendered.


Victim Surcharge

A fee that is imposed on someone convicted of a criminal offence. The surcharge has become mandatory since October 2013, $100 for a summary offence, $200 for an indictable offence, or 30% of any fine imposed.