Help a client whose child was arrested

Scenario:

The Morneaus* are in a fix. Their 18-year-old daughter, Sarah, has been arrested for public intoxication. She smashed a store window in downtown Winnipeg one Saturday night, but luckily no one was hurt. Understandably, the Morneaus are anxious and confused. They call you for help. What do you tell them?

*This is a hypothetical scenario. Any resemblance to real persons is coincidental.

Who do you call?

Criminal lawyers.

The experts

• 

  Michael Dyck

  criminal defence lawyer, Rees & Dyck, Winnipeg

• 

  Jeff Hershberg

  partner, Rusonik, O’Connor, Robbins, Ross, Gorham & Angelini, LLP, Toronto

What they say

Michael Dyck:

First, make sure you have a lawyer on board, because you’re not going to be able to navigate the system. Crown attorneys don’t like talking to self- represented people. They find them irritating, because they don’t understand the rules of the game.

[Tell your clients that if they] have a lawyer already—the lawyer who helped close a property sale or who manages their business affairs—to call him and say, “Whom do you trust?” The other way is to Google search “criminal lawyer.” From there, it’s a minefield. It’s hard to get a sense whether a lawyer will be good or bad, whether there have been complaints at the law society or what the fees are going to be. At the same time, sometimes you don’t need the greatest lawyer to get a client out of custody; you need a lawyer now. If you contact several people and only one gets back to you within 24 hours, that may be the best pick, because that lawyer is responsive. The key is to use your own judgment, analyze the website, read the content and make sure it seems detailed and thorough. [Remember], if at any time they’re unhappy with the lawyer, they can fire him. If Sarah is released by the police, she will have several weeks to find and meet with lawyers before her first court appearance. If she is kept in custody and will be appearing in bail court, then it is imperative to have a lawyer to attend bail court and assist with her release.

Jeff Hershberg:

They can also review provincial government lawyer referral pages, such as Legal Aid Ontario [for low-income defendants]. In Toronto, a lawyer costs $1,500 to $8,000 depending on whether [a case] goes to trial or is diverted, and could be more.

Michael Dyck:

The average lawyer in Winnipeg for a case like this costs from $2,500 up to $10,000. But a $10,000 lawyer is like taking a bazooka to squish an ant. A $3,000 lawyer can squish the ant just as well.

Jeff Hershberg:

The parents don’t have rights here in regards to Sarah’s case, except if police wanted to search their home without a warrant, [then] they have a right to say no. Sarah had the right to remain silent and not incriminate herself by demonstrating her intoxication. She has a right to reasonable bail and to be brought before a justice of the peace within 24 hours of arrest if they decide to hold her for bail.

Michael Dyck:

Assuming Sarah doesn’t have a criminal record, it’s a low-level offence, so the police would typically release her with an appearance notice, which has the first court date. But Sarah was intoxicated, so the police may hold her briefly and then release her to a sober adult, like a parent. If no one can come to the police station, she may be kept overnight and released in the morning when sober. The police use the same test that Crown attorneys and judges use: Are we concerned this person is going to be a flight risk? Do they live far away? Are they not a Canadian citizen? Do they not have ties to the community? The biggest factor is a criminal record. For heinous offences, if someone has connections to the community but also a related record, they usually aren’t granted bail.

Jeff Hershberg:

In Toronto, for this charge, she likely would not be held for a bail hearing. But if she were, it wouldn’t be until Sunday morning, when she would be taken to weekend bail court. If she were released from the police station, it might be after only a couple hours, to sober up. Her release would include conditions and notice of her next court date. No alcohol consumption is a likely condition.

Michael Dyck:

Are they going to have to post bail? Not usually; that’s something we’re misinformed about from watching American TV. However, money comes into play when you reside outside the area. Say she committed the offence in Winnipeg but lives in Toronto. Anytime you reside more than 200 km outside the jurisdiction, you have to post a cash deposit when the police release you. Other than that, people are released under their own recognizance, which is a court order that comes with a dollar value attached to it and a promise to follow these conditions: reside at a specific address and do not move without a judge’s permission, do not return to the scene of the property damage and obey a curfew (not likely in this case). If you don’t follow the conditions, you’ll pay a sum, likely $1,000 in this case. In Manitoba, most people are released on their own recognizance and don’t require a cash deposit or cash bail.

Jeff Hershberg:

The next step is to get disclosure (such as police notes, videos and witness statements) so her lawyer can assess the case and move it toward trial or diversion, which is the withdrawal or dropping of charges after doing community service, making a donation or attending alcohol counselling. Diversion does not require any admission of wrongdoing.

Michael Dyck:

Sarah is a young person without a criminal record. Likely a deal could be struck where she pays for the damage. Maybe she enters into a court order where she doesn’t go back to the store for a year and the Crown drops the charge, which would be a part of a diversion program.

If not, then a discharge would be appropriate. A discharge is not a criminal record; it is a finding of guilt. Absolute discharges have no conditions or requirements. Conditional discharges can involve things like community service. A conditional discharge would appear on a criminal record check until three years after the probation period ends; then deleted.

Jeff Hershberg:

Diversion is more likely, especially with a lawyer, who can explain all the good things about her and why diversion is the better idea. A criminal record for this offence is eligible for a record suspension after seven years. Jail is almost an absolute no chance. She’d either get a discharge or suspended sentence and probation, or a fine. If diversion wasn’t offered, she’d likely receive a discharge if she was found guilty of the offence.

Michael Dyck:

Once you have a criminal record, it’s there. Whether it’s theft or DUI doesn’t matter. You have to tell employers you have a record.

by Allan Tong, a Toronto-based financial journalist.