Criminal Defence Frequently Asked Questions

Bail Hearings

I have a warrant for my arrest, what do I do now?

If you have a warrant for your arrest, you will need to turn yourself in to the nearest police station. You may be released by the police or held for a bail hearing. You may want to make arrangements for legal representation in advance of turning yourself in. We would be happy to assist you and provide further assistance and direction depending on your circumstances.

Can I conduct my own bail hearing?

It is never recommended that you run your own bail hearing. The bail hearing lawyers at Davidson Gregory understand it may be tempting to run your own bail hearing in hopes of speaking to your release sooner; however there are significant risks of running your own bail hearing. Most importantly, you may be unaware that the information you are sharing with the Court is harmful to your case and it may be used against you in the future. It is important you get in touch with a lawyer from our team as soon as possible to assist you.

What type of conditions will I have if I am released?

The conditions that are imposed depend on your personal circumstances as well as the circumstances of your offence. Please contact a bail hearing lawyer at Davidson Gregory who can further provide advice based on your circumstances.

Do I need to have cash for my bail?

The amount of cash needed for bail, if any, is dependent on your personal factors as well as the circumstances surrounding the offence(s) you are charged with. In most cases, an actual cash deposit is not required; however for more serious offences or individuals with lengthy criminal records, a cash deposit may be necessary.

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Sexual Assault Defence

What is sexual assault?

A sexual assault occurs where a complainant is subject to non-consensual sexual activity by the application of force of another person.

Sexual assault activities can range from groping to non-consensual sexual intercourse. Sexual assault may also be charged as offences such as sexual assault with a weapon, sexual assault causing bodily harm, aggravated sexual assault, sexual interference, invitation to sexual touching, sexual exploitation, and forcible confinement, among others.

How is an assault sexual in nature?

To determine if an assault was sexual in nature, the court will examine the following factors:

  • What were the circumstances surrounding the incident?
  • What words or gestures accompanied the act?
  • Which part of the body was touched?
  • What was the nature of the touching?

A Historical Allegation is being against me, now what?

When sexual assault allegations are historical, they can be very difficult to defend against. It is not unusual for sexual assault allegations to be made many years after an alleged incident, particularly when the incident involves a child. We have the skill and experience to overcome challenges in defending historical sexual assault charges.

Is a jury used in a sexual assault case?

Many sexual assault trials are conducted with a jury.  A jury does not rule on the admissibility of evidence, rather they are the finders of fact.  They watch and assess witnesses to determine whether or not they are credible. It is the defence lawyer’s duty to cross-examines witnesses in front of the jury to expose frailties and inconsistencies in the evidence.

It is critical in a jury trial to prepare to give evidence if an accused person decides to testify.

The decision on whether to have a trial by jury is agreed upon by you and your lawyer. It is critical right the criminal justice system for serious charges to have a criminal trial heard and judged by your peers.

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Physical Assault Charges

What does The Criminal Code establish as physical assault?

The Criminal Code establishes three instances in which a person commits assault:

  1. When without the consent of another, he applies force intentionally to that other person, directly or indirectly;
  2. By an act or gesture, he attempts or threatens, to apply force to another person, or causes that other person to believe on reasonable grounds that he has the capability to effect his purpose; or
  3. While openly wearing or carrying a weapon or an imitation weapon, he accosts or impedes another person.
    Important to note is that assault may be found even when there is no physical harm or strength exerted on to the victim.

What are some defences for physical assault?

A number of defences to an assault charge may be accepted by the Court as the absence of criminal intention. These can include:

  • Self-defence or the protection of others;
  • Reflex action, such as in response to a perceived and immediate threat;
  • Defence of property (e.g., where one believes another is taking or damaging property or trespassing);
  • Prevention of a crime (e.g., when police use force to prevent an armed and dangerous person from firing); or
  • Corporal punishment (spanking) of a child, though several exceptions exist. Corporal punishment is permitted only in the course of discipline and not in anger or frustration, not of a child under age two or a mentally challenged child, not of a teenager, not using an object or a slap or blow to the head, and not causing injury.
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Murder Defence

What is culpable homicide?

The Criminal Code defines culpable homicide as causing death by an unlawful act, due to criminal negligence, produced by threats of fear of violence or deception, or, in the case of a child or sick person, willful frightening. By contrast, non-culpable homicide is the killing of another person for reasons that are not criminal, such as by accident or in self-defence.

What is accessory after the fact to murder?

Accessory after the fact to murder, is when an individual knowingly and intentionally assists the murder in escaping the legal consequences for the murder. If you’ve been charged with accessory after the fact, it’s extremely important you work with an experienced murder defence lawyer.

What is first-degree murder and what is second degree murder?

Murder is classified as first or second degree. First degree murder involves forethought and the intention to kill; the death is considered “planned and deliberate.” This is not the case with second degree murder.

What is manslaughter?

For a finding of manslaughter, the Crown must prove there was an “objective foreseeability of the risk of bodily harm, which is neither trivial nor transitory, in the contact of a dangerous act,” but there is no need to establish a foreseeability of death. In other words, no premeditated intention needs to exist and instead, the death must occur due to an assault.

How will I know what to plea at trial?

One of the main defenses for a murder charge is that the Crown cannot prove its case beyond a reasonable doubt. If the Crown proves that you committed a homicide, you may have a defence of self-defence for your self or others.

A murder charge may be reduced to a finding of guilt for manslaughter with a defence of provocation, intoxication, or a lack of intention to commit murder.

What are defences to a murder charge?

The first step on a murder trial is to obtain bail and secure release from custody. The application for bail is heard in Queen’s Bench or Superior Court.

The available elections are to be tried in front of a Judge and Jury or a trial before a Judge Alone.

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Drug Charges

What kind of investigative techniques can police officers use when trying to prosecute a drug charge?

The standard of proof to secure a warrant to search most often is one of reasonable and probable grounds. However, there are some warrant provisions that only require a reasonable suspicion to execute certain warrants. As a last resort, police officers can apply for a wiretap, but this application must be made in a superior court and the police must establish reasonable and probable grounds and that all other reasonable investigative techniques have not been successful. The police also use tracking devices in vehicles, dial number recorders, production orders for bank and other records, review person subscriber information, conduct covert surveillance, use infrared technology in marijuana cultivation cases, and aerial surveillance to investigate narcotics possessions and trafficking.

In sophisticated drug investigations, police officers may also apply for video and audio monitoring in buildings or vehicles.

Can you beat a drug possession charge?

You can win a drug charge. The onus of the Crown is proof beyond a reasonable doubt that you were in possession of a narcotic.  The police may allege that you knew that there were in a residence or a motor vehicle.  There are several facts that the Crown must prove to convict you of a possession charge.

What is an illegal drug search?

An illegal drug search occurs when the police lack reasonable and probable grounds to search a person, vehicle, or a residence or any other place. The police must have reasonable and probable grounds to believe that a person who is being detained or arrested that they have committed a criminal or drug offence and that a search would reveal evidence that you committed a narcotics or drug offence. The police may conduct a warrantless search (a search without a warrant) and the onus of the prosecutor would be to satisfy the Court that the police conducted a lawful search.  If the police go before a judge and obtain a search warrant, they have authority to search a person, vehicle, residence or any other place authorized on the search warrant. If you are opposing the admission of the evidence as a result of a search warrant, you have the onus to establish that the issuing judge should not have authorized the warrant.

What are the penalties for drug possession or drug trafficking?

Penalties for drug possession or trafficking are subject to the provisions of the Controlled Drugs and Substances Act, the Criminal Code of Canada and the classification and penalties schedules. The drugs are classified in accordance with five schedules. Some offences may be summary conviction only, hybrid (where the Crown can proceed by summary conviction or by indictment). or strictly indictable. For possession of a narcotic, an offender may be diverted wherein they are placed on probation and may be directed to perform community service or take counselling. Once they have completed the program, their charges are withdrawn, and they face no criminal record.

If an accused person is found guilty or pleads guilty, they may receive an absolute discharge, and receive no probation or be placed on probation (conditional discharge). Both charges include a finding of guilt, but the Court does not impose a criminal record.

The Court may also place a person on probation only but impose a criminal record (suspended sentence) or impose a fine or incarceration.

More serious narcotics possession and trafficking offences include mandatory prison sentences and depending on the type of drug could have a 6-month, 12-month or a 24-month minimum. Some offences carry a maximum sentence of up to life imprisonment.

If convicted of a drug offence, can I leave the country?

If you are convicted of even a minor drug offence or even receive a conditional discharge, you will automatically be deemed to be inadmissible in the US. To travel to the US, you will have to apply for a US Travel Waiver through Homeland Security. The US authorities will have to be satisfied that you have fully rehabilitated before they will grant the travel waiver.

There are other countries which do allow travel, but there is no uniform policy and the rules of admission vary from country to country.

What is the difference between possession of a controlled substance for the purpose of trafficking and simple possession of a controlled substance?

Simple possession of a controlled substance or drug is an offence where the possession of the drug is unlawful, but it is for personal use.  Possession for the purpose of trafficking is possession where there is a commercial aspect to distributing narcotics.  Proof of this offence may include the amount of drugs seized that far exceeds personal use, proof of trafficking with scales, score (debt sheets), buff or diluting agents, and packaging materials consistent with distributing narcotics.

What are the consequences of being convicted of possessing or trafficking narcotics?

If you are convicted of narcotic possession or trafficking in narcotics, you will likely receive a criminal record unless you have received Alternative Measures or a discharge. Otherwise, you will receive a criminal record for narcotics offences. Acquiring a record suspension (previously known as a pardon) is difficult to obtain and, if granted, requires a five-year waiting period after completion of a summary conviction sentence or ten years for an indictable offence.

In some cases, you may be eligible for a conditional sentence.  This is a jail sentence that is served in the community.  This sentence allows you to continue with employment while being on strict conditions like house arrest or a curfew.

The existence of a criminal record may result in denial of employment with government, corporations, and certain professions regulated under provincial statutes. Your application for citizenship could be denied, and you could be deported under immigration rules and statutes if you are not a Canadian citizen. Entry into a foreign country, such as the USA, is highly unlikely. The only way to gain entry to the United States is to apply for a US Travel Waiver through the US authorities, which is difficult to obtain and not routinely granted.

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Organized Crime

What is Organized Crime?

Organized crime is defined in the Criminal Code of Canada as a group of three or more individuals in or outside Canada whose main purpose is to commit or facilitate a serious offence that is likely to result in financial benefit. As such, many illicit activities may be deemed organized crime as long as there is a minimum of three individuals involved. Examples include identity theft, fraud, human trafficking, sex crimes, and selling illegal narcotics.

What are Criminal Code sentences and how are they secured and levied against members of Organized Crime?

Any other Criminal Code sentences levied against a member of a criminal organization must be served consecutively with the above-mentioned convictions. Further, there are Criminal Code provisions which can be applied in conjunction, such as conspiracy, aiding and abetting, and counselling a person to commit a crime.

In order to secure a Criminal Code conviction for any offence related to organized crime, the Crown must prove the existence and membership of a “criminal organization” whereby a formal structure and a degree of continuity are established. Accordingly, the courts have given a wide interpretation as to what constitutes as organized.

Further considerations that the courts have taken in determining whether an individual participates in, or actively contributes to, any activity of a criminal organization include whether they use a name, word, symbol, or other representation that identifies the criminal organization; whether they frequently associate with any of the persons who constitute the criminal organization; whether they receive any type of benefit from the criminal organization; and whether they engage in activities at the instruction of any of the persons who constitute the criminal organization.

How does the Supreme Court of Canada interpret the organized crime provisions?

The Supreme Court of Canada has also interpreted the organized crime provisions of the Criminal Code to determine that a group, rather than individuals, can be considered a criminal organization. In 2005 an Ontario court found the Hells Angels were a “criminal organization” as the term is defined in the Criminal Code. However, the courts have also shown some restraint with regards to interpreting the proper seizure and forfeiture of “offence-related property” as it pertains to organized crime. In a case once again involving Hells Angels, the court found that a club owned property with the Hells Angels insignia did not constitute offence-related property. This was despite the fact that the crown argued the symbols were used to intimate, and thus used in furtherance of their organized crime offences.

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Money Laundering

What Should I do if I am Facing a Money Laundering Investigation?

You must retain a criminal defence lawyer with experience in money laundering prosecutions.

That lawyer may retain a forensic accounting expert to prove that the property, or funds came from a legitimate source.

How does the prosecution prove a proceeds of crime or money laundering charge?

Quite often police investigators follow the source of funds, seize bank and tax records to illustrate that the suspect does not have a legitimate source of income to possess the funds or property or that it was gained from illegal activity.

What is the penalty for money laundering or possession of proceeds of crime in Canada?

The sentence ranges from a fine to a lengthy term of imprisonment.

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Firearm Possession

What are the three classes of Firearms in Canada?

There are three classes of firearms in Canada: non-restricted, restricted, and prohibited. Non-restricted firearms include rifles and shotguns used for hunting and target shooting.

Restricted Firearms Include:

  • Most handguns with barrels longer than 105 mm, short barrel (i.e. shorter than 470 mm) semi-automatic centre-fire rifles and shotguns;
  • Rifles and shotguns that can be fired when their overall length has been reduced by folding, telescoping, or other means to less than 660 mm; and
  • Firearms designated as restricted by the Criminal Code (such as the Colt AR-15).

Prohibited Firearms Include: 

  • Handguns with a barrel length of 105 mm or less;
  • Handguns that discharge .25 or .32 calibre ammunition, (with minor exceptions made for International Shooting Union competitions);
  • Rifles and shotguns which have been altered so their barrel is less than 457 mm long or their overall length is less than 660 mm;
  • Full automatics;
  • Converted automatics, namely full automatics which have been altered to fire one projectile when activated; and
  • Firearms designated as prohibited by the Criminal Code.

What are the licensing requirements for restricted and prohibited firearms?

A firearms Possession and Acquisition licence application takes approximately 45 days to process and there is a 28-day mandatory waiting period applicable to all applicants who do not presently have a valid firearms licence. In order to obtain the licence, successful completion of the Canadian Firearms Safety Course and Exam is required, and the candidate must be at least age 18. Since the enactment of Bill C-42, it is no longer possible to challenge the exam without attending the Canadian Firearms Safety Course.

Personal information and spousal consent are considered prior to the issuance of a licence, as well as a background check and investigation by the Royal Canadian Mounted Police. The successful applicant must not have been convicted or discharged with an offence where violence against another person was used, threatened or attempted or an offence under the Controlled Drugs and Substances Act, or treated for a mental illness characterized by violence against oneself or others or have a history of violence, attempted violence, or threatening behaviour in the past five years. A person will not be eligible to obtain a licence if the Chief Firearms Officer deems it in the interests of the safety of that person or any other person to not issue it. Providing false or misleading information in order to obtain a firearms licence is a criminal offence.

If the CFO refuses your application for a firearms licence, you may appeal this decision to a Provincial Court Judge. Davidson Gregory have successfully appealed many firearms licensing cases.

How do you obtain and register a restricted firearm?

Upon successfully obtaining a restricted firearms licence, you may purchase a restricted firearm. Since the enactment of Bill C-42, an electronic Authorization to Transport (ATT) is automatically issued by the Chief Firearms Officer (CFO) to transport the firearm from the retailer to the purchaser’s residence. Unlike non-restricted firearms, all restricted firearms are still subject to registration in the Canadian Firearms Registry, with details such as the owner’s name, licence number and date of verification. Storage and transportation requirements for restricted firearms are stricter than those applicable to non-restricted firearms. They cannot be used for hunting and may only be used at approved ranges. Anyone found to commit an offence that contravenes the licence, registration certificate or authorization to transport conditions requirements without lawful excuse or contravenes the inspection requirements may be charged and found guilty of an indictable or summary conviction offence under the Criminal Code.

Acquisition and registration of prohibited handguns are possible in very limited circumstances. For example, grandfathering provisions in the Firearms Act permit the possession of certain prohibited handguns where registration occurred by December 1, 1998 or reported to the RCMP commissioner as business inventory before December 1, 1998 or through inheritance.

What are some of the firearm regulations?

The firearms regulation framework is included in the Firearms Act and the Criminal Code of Canada. The Firearms Act includes requirements related to restricted firearms, including their manufacture, display, sale, transport, authorized possession, lending, use, inspection and disposal. The Firearms Act also sets out that a Possession and Acquisition Licence for firearms expires and is renewable every five years.

Any firearms offences concerning administrative issues such as registration or safe storage may be treated as a criminal offence. For example, careless storage or use or handling of a firearm is a chargeable offence. Depending upon the type of firearm, you have a duty to keep your firearm trigger locked, at a minimum, or locked in a container, receptacle, vault, safe or room that cannot be readily broken open or into. Charges can also be laid on multiple other grounds related to firearms, such as pointing a firearm, possessing dangerous weapons, and carrying a concealed weapon.

What are my province's laws and regulations related to firearms?

Each province, territory or municipality has its own laws and regulations related to firearms. As such, each jurisdiction may restrict where hunting can occur and the calibre or gauge that is permissible for particular a game.

The permitted use of a restricted firearm is limited, such as for target practice or competition at a licenced shooting range. A restricted firearm could also be approved to be kept as part of a collection if various criteria are met. Restricted firearms or a handgun may also be approved for protection of self or others in connection with a lawful profession or occupation in limited circumstances. However, authorizations to carry a restricted firearm for personal protection are rarely issued.

The permitted use of a prohibited firearm is limited. Where licensing has been obtained, prohibited handguns that discharge .25 or .32 calibre ammunition or have a barrel length of 105 mm or less can be transported to a licenced gun range for use at the range in the same manner as restricted firearms.

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Fraud and Theft

What are the penalties for fraud?

If you make restitution of stolen money or funds this is an important and mitigating factor in sentencing.  However, every case is different. For example, stealing from an employer is an aggravating factor.  Paying restitution for stolen money is a very important sentencing factor but it may not be sufficient factor to prevent jail in a large and aggravating fraud.

Is it theft If I steal from someone who doesn’t own the property?

Yes, if that person is responsible for the property on behalf of an owner, you can be convicted of theft if you took the item for that person. Also, if that person is not responsible for the property, but knows that it is not yours, they may take steps to protect the property.  If you steal the item, you can be convicted of theft.

What are the penalties for theft?

The penalties for theft can range from participating in alternative measures and having the charge withdrawn, receiving a discharge after pleading guilty (a finding of guilty, but no criminal record is imposed), a suspended sentence (a criminal record with probation only), a fine (criminal record), a short sharp term of imprisonment, or lengthy terms of imprisonment if the theft is on a large scale.

Can I be jailed for self checkout theft?

Usually, the most serious penalty for shoplifting is the imposition of a fine and a criminal record.  It would only be in the most extreme case where you would have a lengthy criminal record for the same offence.

What if it's my first offence?

If you are facing your first offence for shoplifting, you most likely will not receive a criminal record.  You would be eligible for alternative measures or would be eligible to apply for a discharge which would mean that you would not receive a criminal record.

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Commercial Crime

What is considered a financial or commercial crime?

A common form of commercial crime is a pyramid scheme where an individual or their corporation takes funds from investors & moves money between clients while not providing a return to investors.

Another common form of commercial crime is theft from an employer or corporation.  It is common to see individuals who have access to corporate funds to move them and transfer funds for their own personal use.

Who investigates commercial crime in Canada?

Typically, commercial crime is investigated by specialized members of the RCMP, or Commercial Crime Units of local police agencies.  The charges are prosecuted but specialized prosecutors from fraud units within the Attorney General’s department.

A firearms Possession and Acquisition licence application takes approximately 45 days to process and there is a 28-day mandatory waiting period applicable to all applicants who do not presently have a valid firearms licence. In order to obtain the licence, successful completion of the Canadian Firearms Safety Course and Exam is required, and the candidate must be at least age 18. Since the enactment of Bill C-42, it is no longer possible to challenge the exam without attending the Canadian Firearms Safety Course.

Personal information and spousal consent are considered prior to the issuance of a licence, as well as a background check and investigation by the Royal Canadian Mounted Police. The successful applicant must not have been convicted or discharged with an offence where violence against another person was used, threatened or attempted or an offence under the Controlled Drugs and Substances Act, or treated for a mental illness characterized by violence against oneself or others or have a history of violence, attempted violence, or threatening behaviour in the past five years. A person will not be eligible to obtain a licence if the Chief Firearms Officer deems it in the interests of the safety of that person or any other person to not issue it. Providing false or misleading information in order to obtain a firearms licence is a criminal offence.

If the CFO refuses your application for a firearms licence, you may appeal this decision to a Provincial Court Judge. Davidson Gregory have successfully appealed many firearms licensing cases.

Learn More About Our Commercial Crime Defence Services

Computer Crime

Is cybercrime the same as computer crime?

Generally speaking, these terms are interchangeable but the common thread of “cybercrime” or “computer crime” involves theft of funds, services, telecommunication, credit card/bank fraud and the unlawful distribution of intimate images.

There are many types of criminal offences that are general and specific to computers.  The primary type of offence is using online advertising to sell an item that does not exist or the unlawful use of computers to steal credit card information. Both phrases involve the theft of funds using the internet.

The distribution of intimate images without the person’s consent is also an offence under the Criminal Code and may be considered a “cybercrime” or a “computer crime”.

Stealing telecommunications or devices is also considered a cybercrime. Unauthorized use of a computer is also outlined in the Criminal Code.

Who investigates cybercrimes in Canada?

Generally speaking, the local police service will investigate cybercrime, usually in a specialized unit. If the scope of the investigation is national, the RCMP may engage in a multi-provincial investigation. However, specialized police units typically investigate cyber crimes.

Is cybercrime punishable in the Criminal Code?

There are many sections of the Criminal Code that contemplate online fraud, theft, unlawful use of a computer, the distribution of intimate images, to name a few examples. The Crown may proceed by summary conviction or by indictment. Depending on the seriousness of the offence, the Crown prosecutor may seek a term of imprisonment. Quite often a prosecutor who specializes in cybercrime will be assigned to this area of criminal law.

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Impaired Driving

I’ve been issued Immediate Roadside Sanctions for Impaired Driving. What happens now?

You will have received a notice of administrative penalty. The notice of administrative penalty outlines the law you have allegedly contravened as well as the length of your vehicle seizure. You have 7 days to appeal your notice of administrative penalty through the SafeRoads Alberta portal.

If I’m convicted of an impaired driving charge can I leave the country?

Whether you will be allowed into another Country will depend on that Country’s laws. In most cases if you have been convicted of only one impaired driving offence you will likely be granted entry into another country.

What is the ‘Ignition Interlock’ program?

An ignition interlock (or “blow box”) is a device that is installed in a vehicle and is connected to the vehicle’s ignition system. The device requires the driver to provide a breath sample suitable for analysis before the vehicle will start. This device will prevent operation of the vehicle if the driver’s blood alcohol content exceeds the pre-set limit. Once started, the device requires the driver to provide random samples of breath throughout operation.

The driver is responsible for paying all costs associated with the ignition interlock program including: installation of the device, ongoing monthly fees for the duration of the program, and a removal fee once the program is completed.

What is the prohibited level of Cannabis (THC)?

There are two prohibited levels for Cannabis / THC. The lower prohibited level is between 2 nanograms (ng) and 5 ng of THC per mL of blood. The second level is 5 ng of THC or more per mL of blood.

Is it legal to drive after taking CHB?

For the most part, CBD is safe as CBD does not have the same intoxicating impact as THC. If you have only used CBD you may not exhibit psychoactive effects that would impact your driving. However, you still must be careful about any side effects you may have that could still impact your driving. For example, if you are experiencing symptoms of tiredness you should not drive.

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