Can you ask police to drop charges?

What happens if charges are dropped before court?

Can assault charges be dropped in Canada?

In order to answer these questions, we need to start with a quick lesson about how it works for the police to lay a charge. Typically, when the police decide to arrest someone for a criminal offence, like a domestic assault charge, the police officer will start by going over the person’s rights with them from the Charter of Rights and Freedoms (it is usually just called the Charter). The officer will tell the person:

• Why the person is being arrested

• About their right to speak to a lawyer

• Provide a police caution or a police warning about the right to silence

At that moment in time, when the officer is going over these Charter rights, the person is under arrest but has not been officially charged with a criminal offence yet. In order for a charge to be laid (or begin), police officers have to prepare a special type of document called “an Information” and then swear under oath with a court official that they believe the person committed a crime. If the police officer releases you at the same location where you were arrested, the officer, clearly, has not had the time or ability to swear under oath with a court official. So, in those cases, the police officers will complete the paperwork and swear the Information at some point between the date of arrest and the first court date. If you remain in custody with the police at the police station or at a remand centre (like the Winnipeg Remand Centre), then the police typically sweat the Information right away. Once the Information has been sworn, that is the moment in time that a charge is laid.

It is possible that the police may arrest someone, give them paperwork with a first court date, and then decide to not swear an Information or proceed with a criminal charge. If this happens, there is no charge that needs to be dropped because no charge was ever laid. However, this is quite rare and, in my estimate, happens in less than 1% of of all criminal cases.

There can also be cases where the police swear an Information and then the Crown Attorney reviews the file and determines the charges should be dropped. In Manitoba, the normal process is the Crown Attorney will enter a Stay of Proceedings (SOP). This can be done by the Crown Attorney submitting the necessary paperwork to the court office. This is different than withdrawing or dismissing a charge, as the prosecutor could decide to re-lay the charge and re-start the case within 1 year, but that is exceptionally rare.

So, it is possible for a charge to be dropped (or for a charge to not even be laid) prior to a first court appearance? The answer is yes, but it is pretty uncommon. Once a charge is dropped (or it is confirmed that the police will not swear an Information), then the release conditions that you have on an Undertaking, Recognizance, or Release Order for that charge are no longer in effect. For example, if there was a no contact order, then that condition would no longer apply. In order to ensure that you do not break your release conditions by accident, it is important to talk to your lawyer for confirmation before you do anything that was listed as a condition on a release order.

Just because a charge isn’t dropped on or before the first court date, it does not mean that the case is definitely going to have to end with a guilty plea or a trial. My job as a criminal defence lawyer is to advocate for my client and, if possible, persuade the Crown Attorney to not proceed on the charge and enter a Stay of Proceedings. Over my career, I have handled hundreds of cases involving domestic assault.

If you need help with a criminal charge, you can contact Michael Dyck immediately at 204-318-6116.

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Can the victim drop assault charges in Canada?

Can assault charges be dropped by the victim in Manitoba?

Can complainant drop charges?

Often, the words “victim” and “complainant” are used interchangeably. I prefer to use the word complainant until the accused person has plead guilty or been found guilty after a trial.

In many cases, my clients think that the complainant has the power to drop criminal charges. This is because we watch a lot of American TV shows and movies which show a complainant being able to make a decision with the police officers if a charge should be laid or not. However, that is not the case in Canada. Here, it is up to police officers to decide if a person should be arrested and charged. (But, it is true in some cases that a Crown Attorney in Manitoba will review the information the police gathered and tell them not to proceed with laying a charge.) So, a complainant cannot decide if a person should be charged or not, that decision is up to the police. In Manitoba, there is a zero tolerance policy for domestic violence charges, so even if a complainant is uncooperative with police and says that they do not want a charge, the police must proceed with an arrest.

After a charge is laid, then it is up to the prosecutor, also known as a Crown Attorney, to decide if the charge should proceed or be dropped. If the Crown Attorney thinks the charge should proceed, then it is up to an accused person to decide if they want to plead guilty or set a trial date. If the Crown Attorney in Manitoba thinks the charge should not proceed, then a Stay of Proceedings (SOP) is entered and the charge is dropped.

So, does that mean that whatever the complainant thinks or wants to see happen will have no impact on the case? Because, after all, it is up to the police and the Crown Attorney to decide what happens in the case. That is not really how it works either. Complainants can provide their input to Victim Services, which is another provincial government agency. Victim Services then forwards information to the assigned Crown Attorney who will evaluate the case and determine how to proceed. Victim Services often wants to know:

• whether the complainant was telling the police the truth or not when they provided a statement to the police,

• whether or not there is a history of reported or unreported criminal offences,

• whether the complainant is afraid of the accused or wants to resume contact with the accused, and

• whether the complainant wants to cooperate with the prosecution by coming to court to testify (if necessary) or if the complainant will be uncooperative with the justice system process.

So, the ultimate decision to proceed with a charge or not remains with the Crown Attorney. This is one reason why many people want to hire a criminal defence lawyer to help them with their case because it may be possible for your lawyer to persuade the Crown Attorney to enter a Stay of Proceedings in your case.

It is important to highlight that an accused person should never communicate with a complainant or a witness to try and get charges dropped. In most cases, there is already a no contact order between the accused and any complainants or witnesses. So, it would be a crime for the accused to say “hello” to a person who is listed on the no contact order, never-mind discussions about the case itself. Many people would refer to this as witness tampering, but the criminal offence for this is called obstruction of justice and it is at section 139(2) of the Criminal Code:

139(2)
Every person who intentionally attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction.

139(3)
Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,
(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;
(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or
(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror.

In my experience, most people who are convicted for obstruction of justice receive a jail sentence and it is an offence that Judges take pretty seriously. So, an accused person should NOT tell a complainant to go to Victim Services or to try and get the charges dropped. A complainant should make whatever decision they want without any help, encouragement, or influence from the accused person. The right and best thing to do is to work with a criminal defence lawyer to deal with the charges.

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Can I take my statement back from police?

What happens after you give a statement to the police?

Can I withdraw my statement in a domestic violence case?

Statements with police officers come in a few different forms:

1. Informal statement. A person can say things to the police officer, who then makes notes in a notebook about what was said. Sometimes, the officer may ask the person to sign the notebook to confirm the officer recorded the notes accurately.

2. Formal written statement. These are fairly common in domestic violence cases. A police officer asks the person questions and then writes down the replies. At the end, the person can review what the officer wrote to ensure it was recorded accurately and then the person signs at the bottom of the page.

3. Formal audio statement. In some cases, more often with police officers in rural settings, an officer may have an audio recording device and will ask the person question and record the replies. An audio file is then created and shared with the Crown Attorney and the accused.

4. Formal audio/visual statement. The person goes with the police officer to a police station where the police can use cameras and microphones to record what the person says and how they say it. An video file is then created and shared with the Crown Attorney and the accused.

5. Formal audio/visual statement under oath. This is the same as a formal audio/visual statement, except the statement is made under oath, just like how a person would testify under oath in front of a Judge at a trial. A police officer who is also appointed as a Commissioner for Oaths would ask the person if they want to affirm their evidence or swear on a Bible. Then, if the person says something different later in court under oath, they could be charged with perjury for lying under oath.

If a person makes a statement with a police officer and describes how someone else committed a criminal offence, but then later admits that what they told the police was a lie, the person could be charged with a criminal offence called public mischief, under section 140(1) of the Criminal Code:

Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by
(a) making a false statement that accuses some other person of having committed an offence;
(b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;
(c) reporting that an offence has been committed when it has not been committed; or
(d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.

This is both a good thing and a bad thing. This is a good thing because it is illegal to report a false crime. As a society, we should be discouraging people from going to the police and making a false police report just to get someone else in trouble. However, this can be a bad thing because in cases where people have already lied and made a false police report, they may not be keen to come forward now and admit they lied in their police statement, because they could then be charged with public mischief. Most people want to avoid being charged with a criminal offence, so some people may not come forward and admit they lied to the police because they are worried about what could happen to them.

My role as a criminal defence lawyer is not to assist a witness, complainant, or victim in criminal cases. I cannot help someone recant a statement they made to the police. My role is to assist my client, the person who has been charged with an offence. The best thing for a person to do if they’ve been charged with a criminal offence is to contact me so we can start working on the case together.

If you need help with a criminal charge, you can contact Michael Dyck immediately at 204-318-6116.

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About the author

Michael Dyck is a partner at Rees Dyck Rogala Law Offices. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients.

Does Canada have a version of Miranda rights?

What are your Miranda rights in Canada?

Do police read rights in Canada?

Does Canada have the right to remain silent?

The reason that most of us have heard of Miranda rights before is because we watch a lot of American TV shows and movies. When an American police officer is arresting someone, we see how the police go over these Miranda rights. You may hear a police officer say something like:

You have the right to remain silent. Anything you say can be used against you in court. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.

Miranda rights come from a 1966 American Supreme Court case called “Miranda v. Arizona”. In Canada, our legal system is clearly not identical to the one in the United States. We do not have Miranda rights in Canada, but we have something pretty similar. There are many legal rights that are part of our Constitution in the Charter of Rights and Freedoms (it is usually just called the Charter or Charter rights). When a police officer arrests you in Canada, you should expect to receive the following legal rights and hear something like this:

• Why you are being arrested, in other words, what is the alleged criminal offence. This is part of section 11(a) of the Charter. For example, “You are under arrest for assault.”

• About your right to speak to a lawyer. This is part of section 11(b) of the Charter. “You have the right to retain and instruct counsel in private without delay. This means that before we proceed with our investigation you may call any lawyer you wish or get free legal advice from Duty Counsel immediately. If you want to call Duty Counsel we will provide you with a telephone and telephone numbers. If you wish to contact any other lawyer, a telephone and a telephone book will be provided. If you are charged with an offence, you may also apply to Legal Aid for assistance. Do you understand? Do you want to call Duty Counsel or any other lawyer?

• Provided with a police caution or a police warning about the right to silence. This is part of section 7 of the Charter as a part of fundamental justice. “You need not say anything. You have nothing to hope from any promise or favour and nothing to fear from any threat, whether or not you say anything. Anything you say may be used as evidence.”

One of the main differences between Miranda rights and Charter rights is in Canada you do NOT have a right to have a lawyer with you in the room while you are being interviewed by the police (unless you are under 18 years old). Our Supreme Court confirmed this in a 2010 decision, R. v. Sinclair, 2010 SCC 35.

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WHAT TO DO IF YOU ARE BEING READ YOUR RIGHTS

If the police ever tell you that you have a right to speak to a lawyer, make sure that you use that right. After the police explain your right to counsel, you can tell them that you understand. Then, they’ll ask if you want to contact a lawyer and you should tell them, “yes, I want to talk to a lawyer.” Be clear. Don’t say “maybe later” or “not right now.” Say yes. At that point, you can request to talk to a specific lawyer or ask to talk to the 24/7 on-call lawyer from Legal Aid. Keep in mind, the lawyer from Legal Aid is only being paid to give you advice over the phone and is not assigned as your lawyer for the whole case. The police can use the internet to look up a lawyer’s phone number if you do not have it handy or memorized.

Next, you want to use your right to remain silent. I tell clients that they are allowed to tell the police 3 pieces of information when they are under arrest or during a police interview; your name, your birthdate, and your address. That’s it. If the police ask any other questions, you can literally keep your mouth shut and refuse to answer or say something like “no comment” or “my lawyer advised me not to make a statement.” Any information you provide to the police can be used as evidence AGAINST you. It will not be used by the police as evidence to ASSIST you or exonerate you. Also, it is a problem if you lie to the police because then if you testify in court and your story changes, the prosecutor can accuse you of either lying to the police or lying to the judge.

If you need help with a criminal charge, you can contact Michael Dyck immediately at 204-318-6116.

Related articles

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• Preventing a Break and Enter in Your Home: Tips From a Criminal Defence Lawyer

About the author

Michael Dyck is a partner at Rees Dyck Rogala Law Offices. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients.

What is all included in domestic violence?

What is required for the assault to be considered domestic?

What is considered domestic violence in Canada?

This article is going to help explain a bit about what domestic violence is and how the justice system works in Manitoba. If you have been charged with a domestic assault or another domestic violence offence, I am hoping this will help answer some of your preliminary questions.

In the Criminal Code, there is no specific charge of “domestic violence” or “domestic assault.” Section 265 of the Criminal Code defines what assault is and section 266 outlines what the maximum punishment is for assault. But there is no description or definition of a domestic assault. However, the Criminal Code tells Judges that they must consider if a victim of a crime is an intimate partner when deciding what a fit and appropriate sentence or punishment is. Additionally, section 718.201 of the Criminal Code says:

A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.

So, domestic violence charges are treated a differently than non-domestic violence cases. In order to be called a “domestic violence” charge, there must be two things:

1. The relationship between the accused and the complainant is, or was, a romantic relationship. This includes any relationship where the two people are engaged in a sexual or romantic relationship such as a casual relationship, boyfriend/girlfriend, common law, or marriage. The two people do not have to still be in a relationship at the time the complaint is made, as long as they were in a romantic relationship at some point.

2. There is a criminal charge or offence that is reported. The most common charge we see in domestic violence situations is assault, but domestic violence includes all types of assaults such as assault with a weapon, assault causing bodily harm, aggravated assault, and sexual assault. It also includes other types of crimes that may not seem like other violent offences, such as uttering threats, forcible confinement, criminal harassment, and property offences - like mischief to property under $5,000.

In Winnipeg, criminal cases are sorted into one of two categories; domestic violence or non-domestic violence. Domestic violence cases are so common that Manitoba Justice has two entire units of Crown Attorneys in Winnipeg assigned to deal with these cases (Domestic Violence Intensive Case Assessment Process Unit and the Domestic Violence Unit). Over my career, I have handled hundreds of cases involving domestic assault.

Additionally, in Manitoba, there is a zero tolerance policy for domestic violence cases. What this means is that as soon as police officers receive information that a criminal offence has occurred in the context of a domestic relationship, they must make an arrest. In some cases, a complainant does not want to make a formal or signed statement with the police, but that is not necessary for the police to make an arrest. Unlike American TV shows and movies, a complainant does not get to decide to lay a charge or not. That decision is up to the police officers. Then, once a charge is laid, the Crown Attorney (prosecutor) is the only person that can decide if the charge should proceed or if it should be dropped.

If you need help with a domestic violence charge, you can contact Michael Dyck immediately at 204-318-6116.

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WHAT HAPPENS AFTER I AM CHARGED WITH DOMESTIC ASSAULT?

In many cases, the police officers who arrest you will release you with a court date and some rules or conditions you need to follow. In other cases, you may be kept in custody and then released with the consent of a Crown Attorney or if a Judge grants your release from custody after a bail application. Typically, the conditions are part of an Undertaking, but they can also be part of a Recognizance or a Release Order. All of these, including an Undertaking, are court orders and if you break the rules or conditions on them, you are committing a criminal offence and you could be arrested and charged. The conditions remain in effect until the court case is complete; the charges are dropped, you have plead guilty and received your punishment from the Judge, or the trial has finished. There are ways to vary or change these court orders, but you may want to talk to a lawyer to get more information about how that works and whether it is worthwhile to try to do that.

The most common condition on your paperwork is a no contact order, or an NCO, with the person who made the complaint to the police. In some cases, you may be happy to follow the NCO. But in many cases, you will still want to communicate with your partner, especially if you share children together. It does not matter if your partner initiates the contact or says that they would like to talk to you. The court order is in place and it says you are not allowed to contact the other person. It is important that you connect with a criminal defence lawyer quickly to start getting advice about how you should proceed in your case.

Along with the conditions, there is a first court date on the paperwork that the police give you. You are required to appear in court unless you have hired a criminal lawyer and the lawyer confirmed that you do not need to attend. As well, there may be a date for you to complete fingerprinting and photographs at the police station if the police did not complete these things at the time of your arrest. If you do not attend to the police station on time for this, you can be charged with a new criminal offence and a warrant can be issued for your arrest.

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How do you win a domestic violence case?

Does domestic assault go on your record?

Many people who are charged with a domestic violence offence have never been arrested before. This means that they often have a lot of questions about what will happen in their case. The best thing to do is arrange a meeting with a defence lawyer who can help answer all of your questions and start working on your case. If you haven’t needed to hire a criminal defence lawyer before, you can read a previous post I wrote, called, “Finding the Best Criminal Lawyer - Is Your Lawyer Legit or Full of It.”

In my opinion, a “win” on a domestic assault case is where the client can walk away without a criminal conviction or a criminal record. For most people, that is the top priority and secondary priorities may include avoiding a jail sentence or having the matter dealt with as quickly as possible. This means that my first approach is to see if there is a way to have the Crown Attorney agree to drop the charges, because that guarantees the client will not get a criminal record. I think it is also important to tell my clients what a Diversion program is, how it works, and whether or not they would be eligible for it. In some cases, we have to proceed to a trial where a Judge decides if the Crown Attorney has proved the offence beyond a reasonable doubt. However, most cases in the justice system are worked out without having to go to a trial.

Just because a person has been charged with an offence, it does not mean that they are guilty and it does not mean they have a criminal record. The way a person would receive a criminal record is if they plead guilty, or are found guilty after a trial, and the Judge imposes a sentence such as a suspended sentence with probation, a fine, or a jail sentence.

If you need help with a domestic violence charge, you can contact Michael Dyck immediately at 204-318-6116.

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Related articles

• Can you have alcohol in your car?

• Can you have pot in your car?

• Impaired Driving or DUIs

• Preventing a Break and Enter in Your Home: Tips From a Criminal Defence Lawyer

About the author

Michael Dyck is a partner at Rees Dyck Rogala Law Offices. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients.

Manitoba Court Closures (Coronavirus / COVID 19 Response) - Fall 2020

On November 10, 2020, after the Province of Manitoba announced a province-wide red alert to deal with the increase in our COVID-19 rate, the Courts in Manitoba responded by shutting down most hearings for the next month. The initial announcement from the Provincial Court was on November 12, 2020. As the Province of Manitoba provided further updates about COVID-19 measures, the courts have extended the shutdown with a second announcement on November 30, 2020. Again on December 30, 2020, the courts extended the shutdown with a third announcement and are keeping courts closed until January 29, 2021.

Because most of the criminal cases are handled by the Provincial Court, I am going to focus on what you need to know to confirm when your next court date will be.

I will also endeavour to update this post as I receive updated information from the courts, so you can come back here. This post was last updated on January 6, 2021 at 4:47 pm.

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The shutdown was supposed to end on Dec. 11, but was extended to Jan. 29, 2021

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Provincial Court

On November 10, 2020, the Provincial Court of Manitoba sent out a notice that all courts would be cancelled except for major court centres (Winnipeg, Portage la Prairie, Brandon, Dauphin, The Pas, and Thompson) to handle in custody cases for both adults and youths. You can read the official notice by clicking here. If you are NOT in custody right now, you will NOT have a court appearance between November 12, 2020 and January 29, 2021. This means that first appearances, remand appearances, guilty plea dates, sentencing dates, and trial dates for people who are NOT in custody are all being cancelled and will have to be rescheduled.

What is my new court date?

If you do not have a lawyer but would like some help with your case, please click here to contact me and I would be happy to help you with your case. I am happy to arrange meetings by phone, video conference, or in person (on a case by case basis). We can also complete Legal Aid applications over the phone.

If you were recently arrested and released by the police with a court date between now and January 29, 2021, you can find out when your “new” first court appearance will be clicking on one of the links below.

• Winnipeg

  • Court date was between November 16 and December 11

  • Court date was between December 14 and December 31

  • Court date was between January 4 and January 8

  • Court date was between January 11 and January 29

• Winnipeg Legal Aid Administrative Court

  • Court date was December 8 at 9:30 am in courtroom 402

• Brandon, Thompson, The Pas, Dauphin, or Portage la Prairie

  • Court date was between November 16 and December 11

  • Court date was between December 14 and December 31

  • Court date was between January 4 and January 8

  • Court date was between January 11 and January 29

• All other rural court appearances

  • Court date was between November 16 and December 11

  • Court date was between December 14 and December 31

  • Court date was between January 4 and January 8

  • Court date was between January 11 and January 29

  • List of court locations that will not open court in the foreseeable future

You can always call the Provincial Court to confirm what your next court date will be at 204-945-3454, ext. 1 for English and then ext. 0 for reception.

If you have a lawyer already

If you have a lawyer, you can contact him or her to find out when your new court date will be. Please keep in mind, if you had a guilty plea date, sentencing date, or trial date arranged between November 12 and January 29, your lawyer will have to coordinate a new date with both the court office and the assigned Crown Attorney and that will take some time to organize. So please, be patient as we reschedule and finalize new dates. (If you are already a client of Rees Dyck Rogala, you can contact Kyra at Front Reception at our firm to confirm your next court date 204-415-5544 ext. 0).

Provincial Court - Northern Communities

On October 30, 2020, the Provincial Court of Manitoba sent out a notice that some court locations would not see court resuming until at least January 2021 (Brochet First Nations, Cross Lake, and Norway House). A list of other court locations did not expect to hold court for the foreseeable future (Gillam, God’s Lake Narrows, God’s River, Lac Brochet, Oxford House, Peguis, Poplar River, Pukatawgan, Shamattawa, South Indian Lake, Split Lake, and Waywayseecappo). There was a plan to return to several communities in November (Garden Hill, Churchill, St. Martin, and Sioux Valley). You can read the official notice by clicking here. However, after the announcement on November 30, 2020, all rural court dates are cancelled until at least January 8th.

Traffic Court at 373 Broadway

The Provincial Offences Court office at 373 Broadway will be closed to the public between November 12, 2020 and January 29, 2021. Any court appearances between those dates will have to be rescheduled. Click here to see the official court notice about traffic tickets. The court notice says that the new date and time will be sent to you, but you can also follow up with them directly by phone 204-945-3156 or 1-800-282-8069 ext 3156 or by email to poc@gov.mb.ca.

Manitoba Court of Queen’s Bench

On November 10, 2020, the Manitoba Court of Queen’s Bench announced that all matters scheduled to appear between November 16 to December 11 were cancelled, except for judge-alone criminal trials with an accused in custody. All jury trials that were going to start during this time will be rescheduled, but trials already in progress are allowed to finish. You can read the official notice by clicking here. The Court is prepared to allow virtual trials to proceed with permission from the Associate Chief Justice on a case-by-case basis. Many other judicial services that were being offered by video or audio conference are going to continue (including criminal, civil, family, and child protection matters).

Manitoba Court of Appeal

On November 2, 2020, the Manitoba Court of Appeal announced that all hearings would be conducted remotely (by telephone or video appearances) until further notice. You can read the official notice by clicking here. There were no updates or changes to this policy after the provincial announcement.

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About the author

Michael Dyck is a partner at Rees Dyck Rogala Law Offices. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.

Finding the Best Criminal Lawyer - Is Your Lawyer Legit or Full of It?

For many people charged with a criminal offence, it is their first time. It is stressful to think about the potential consequences and it is stressful to know what to do or who to hire. First, I would always recommend that you hire a lawyer if you are charged with a criminal offence. As a criminal defence lawyer, it makes sense that I would recommend you hire one, so I may be biased. But you don’t have to listen to me. Whenever people that are very familiar with the justice system like judges, police officers, or corrections officers are charged with a criminal offence, they hire a lawyer. I want to help explain how I think it should work when you hire a criminal lawyer so that you can figure out if the lawyer you meet with is legit or full of it.

What is a retainer

A legit lawyer will explain this in detail

A “retainer” is a word that a lot of new clients have heard before, but almost no one understands exactly what it means or how it works.

In a very basic sense, a retainer is like a pre-pay or a down payment. It is money collected at the beginning of the case to cover the lawyer’s bill at the end of the case. The reason criminal lawyers like this process is because, unfortunately, some clients may not pay an outstanding bill after all the work is done. Even in cases where I was able to get an outstanding result for a client, some still haven’t paid their outstanding bills. By collecting a retainer upfront, it guarantees that the lawyer will get paid for his or her work at the end of the case.

To be more specific, any money that you pay to the lawyer as a retainer does NOT go to the lawyer directly. Instead, it goes into a special type of bank account called a “trust account” and the trust account is handled by the lawyer’s firm. It is called a trust account because you are trusting the money to him or her. Money in a trust account at a law firm is really just like any other bank account that you’d have. It is still your money, but we are holding onto it for you. We cannot lose or spend your money, and the only way the money can leave the trust account is with the client’s permission. After a lawyer completes work on your file, then he or she can prepare a bill for the work completed and the money can then be transferred from the trust account to a pay cheque for the lawyer.

So, it is different than a pre-pay because even if a client pays a retainer on day one, the lawyer you hire does not actually receive any of the money yet (but he or she hasn’t completed any work, so he or she doesn’t really deserve any money yet). Lawyers can only receive money paid as a retainer after they prepare a bill for work completed.

A legit lawyer will explain in detail to new clients what a retainer is so clients actually understand what is going on. I always explain what a retainer is in detail and I often use an analogy at my initial meetings to help clients understand.

How much does it cost

A legit lawyer will tell you exactly

First, you have to know that all lawyers seem to do things a bit differently. The key is to ask a lot of questions so you can understand how the costs and fees actually work.

Some lawyers charge clients using a block fee or a flat fee. This system works like a menu at a restaurant. There are different types of legal work the lawyer can do (such as a bail application, a guilty plea, or a trial) and there are different costs for each of those types of work. It seems that most Winnipeg defence lawyers prefer to use block fees. 

Alternatively, lawyers can also use an hourly rate. Lawyers keep track of every minute they spend working on the file including every meeting, phone call, text message, and email. The lawyer prepares a detailed timesheet that documents the work completed and then multiplies it by the hourly rate. The problem with hourly rates is that neither the client or the lawyer knows what the final bill will be, so it can make some clients anxious and the final bill may be a surprise. There isn’t a right or wrong way here - some clients like block fees and some like hourly rates. The key is for you to understand how the lawyer will be charging you at the outset.

A legit lawyer will tell you exactly what the block fees are (or quote you a range) and/or tell you what the hourly rate is. I almost exclusively use block fees because I want my clients to be able to plan and budget for their legal fees. I think that an experienced criminal defence lawyer should be able to estimate how much work a particular case will require and quote an exact block fee for the client. Some lawyers do not tell you what the final costs will be, or they can be vague about the block fee. But, to me, that doesn’t seem like a fair way to treat someone. At a restaurant, you get to see the prices before you order your food, shouldn’t that same idea apply to legal fees? I always tell my clients what the exact block fee will be at our first meeting.

Initial retainer vs. final cost

A legit lawyer will tell you both

An initial retainer is the amount of money the client must pay into the trust account before the lawyer will begin any work.

For some lawyers, they will tell you that they won’t open a file for you or start any work unless you pay an initial retainer first. I think that is a completely reasonable approach as long as the lawyer explained what the block fees are or what the hourly rate is. Many lawyers, myself included, will not start working on a file unless a client has paid an initial retainer or made a first payment on a payment plan. Not all lawyers ask their clients to pay an initial retainer. It is important to discuss with your lawyer if there is an initial retainer amount and then what that amount is.

One problem that can occur is when a lawyer tells you a retainer amount and you assume it is the final cost, but the lawyer meant that it was only the initial retainer. In most cases, the initial retainer is NOT the same as the final cost. This problem is easy to avoid if you can confirm if the amount quoted is an initial retainer or the final cost. Some lawyers may try and lure new clients with a lower retainer amount than other lawyers, but then surprise clients part way through the case with the final costs/fees.

A legit lawyer will tell you what the retainer amount is as well as what the final cost is (either as a block fee or hourly rate). I always tell my clients what the final costs or fees will be at our first meeting. I do not ask my clients to pay an initial retainer. Instead, I provide my clients with the final cost and then I start working on the case after the first payment is complete.

What is a retainer agreement

A legit lawyer will give you one

Lawyers love paperwork, right? Not always, it seems. A retainer agreement is a letter that the lawyer prepares and gives to the client to ensure the client understands how it works to hire the lawyer and what the costs or fees are. In many ways, it is like a contract between the lawyer and the client. The retainer agreement can outline what the retainer amount is, what the block fees are, what the hourly rate is, and how the lawyer charges the client if the legal relationship ends early.

In my experience, a lot of Winnipeg criminal defence lawyers don’t use retainer agreements. It isn’t a requirement from the Law Society of Manitoba, but they do recommend that lawyers put details in writing for clients about costs. Under the commentary section of the Code of Conduct for “Reasonable Fees and Disbursements” it says:

A lawyer should provide to the client in writing, before or within a reasonable time after commencing a representation, as much information regarding fees and disbursements, and interest, as is reasonable and practical in the circumstances, including the basis on which fees will be determined.

I think a legit lawyer should provide you with a retainer agreement in order to make sure the you understand everything properly and to help avoid misunderstandings. No one has a perfect memory, so the retainer agreement makes sure what was discussed at the meeting is written down and agreed upon by everyone. I think a retainer agreement helps my clients clearly understand how the lawyer-client relationship works and what the costs and fees are, so I always prepare retainer agreements at the end of our first meeting so they can review it in detail before they make any decisions.

Are there extra costs

A legit lawyer will tell you

Part of the discussion about costs and fees should include details about extras. Are taxes extra? Is travel time and mileage extra? Are there extra costs for disbursements like photocopies or postage? Some firms have a “file disbursement fee” that is designed to cover all the costs of photocopies and postage, but you should still make sure you know what the file disbursement fee is. These are questions that should be answered at the first meeting.

The Code of Conduct from the Law Society says:

A lawyer must not charge or accept a fee or disbursement, including interest, unless it is fair and reasonable and has been disclosed in a timely fashion.

In some cases, lawyers decide to charge clients an additional amount for exceptional results. Basically, if the lawyer does a great job and gets a great result for the client, the lawyer can charge a “win bonus.” This is not against the Code of Conduct, but I think a lawyer would have to tell a client they may decide to charge a win bonus in the retainer agreement.

A legit lawyer will provide you all the details about extra costs and include them in the retainer agreement. I always tell my clients all the details about disbursements and travel time and mileage costs. I include that information in the retainer agreement that I give to my clients at the end of the first meeting. Finally, I have never charged a client a win bonus and I don’t plan on doing it. I think I should be motivated to work hard for you because you hired me and you are paying me to do a job. I do not think I should need “extra motivation” to try and get you a great result. 

Can I get a receipt

A legit lawyer will provide receipts

The Law Society has very strict rules about how lawyers accept money from clients. For cash payments, a lawyer must always issue you a receipt immediately. It is best to count out cash together and then both you and the lawyer should sign the receipt to confirm the amount, then the lawyer provides you with a copy of the receipt. For cheques or money orders, a receipt isn’t necessary because the amount being paid is clearly written, but you can always request a receipt if you would like one. For credit/debit payments, you should be able to receive a copy of the payment slip from the debit/credit machine for your records and you could also request a receipt from the firm if you would like one.

A legit lawyer will always issue you a receipt immediately for cash payments and will offer to issue you a receipt for other payment types. At our firm, we always issue receipts for cash payments as well as whenever a client requests one.

Non-refundable retainer

A legit lawyer won’t say this

This one is really easy to explain. All lawyer fees have to be fair and reasonable - the Law Society says so. So, if you hire a lawyer today and pay him or her a $1,000 retainer, and then tomorrow you change your mind, the lawyer doesn’t get to automatically keep that money. Even if the lawyer told you the retainer was non-refundable. Even if the receipt said the payment was non-refundable (this is something I’ve actually seen on the receipt for a Winnipeg criminal defence firm). Instead, the lawyer would have to justify what legal work was completed, provide a bill for that work, and provide a refund if there was any money remaining in the trust account.

A legit lawyer would never tell you that a retainer is non-refundable because that would be intentionally misleading to you. Frankly, if the term non-refundable retainer came up at some point during a meeting with a Winnipeg criminal defence lawyer, I would walk out of that meeting. I always explain how costs and fees work with my clients because I want them to actually understand so they can make informed decisions. I have never told a client that a retainer is non-refundable and the receipts from my firm definitely do not say that either. 

Legal Aid Plus Cash

A legit lawyer won’t double dip

A lawyer is allowed to collect the Legal Aid application fee of $25 to forward to Legal Aid on your behalf. If your application with Legal Aid Manitoba is approved, it means that Legal Aid will pay the lawyer for the legal work that needs to be completed on the case. You do not need to pay the lawyer anything more or extra to work on the case. Sometimes, people think that if they can pay the lawyer something extra, that they will get better service from the lawyer. However, lawyers are not allowed to accept payments for legal work that is covered by Legal Aid and it would be fraudulent and unethical for them to do so. There is an exception where you can pay a lawyer privately for parts of the case that Legal Aid refuses to pay for. For example, if Legal Aid does not authorize travel time or mileage for a file, the lawyer may bill Legal Aid for the legal work and then bill the client privately for travel time and mileage (assuming the client has agreed to this in advance).

A legit lawyer will not ask for more money on a case where Legal Aid is already approved. If the lawyer is not prepared to work for what Legal Aid pays, then the lawyer should not have agreed to take the case on a Legal Aid basis. I never double dip or suggest that I’ll work harder for clients on Legal Aid if they pay me something extra.

False or mis-leading ads

A legit lawyer won’t break the rules

The Manitoba Law Society’s Code of Conduct has specific rules about how lawyers in Manitoba are allowed to advertise. Basically, advertisements have to be truthful, accurate, and verifiable and they cannot be misleading, confusing, deceptive, or likely to be misleading, confusing, or deceptive. Manitoba lawyers cannot suggest they are superior to other lawyers, suggest or imply that they are aggressive, or disparage or demean other people, groups, or organizations. So, if you see an advertisement or a lawyer’s website and it says anything like this, they are breaking the Code of Conduct and acting unethically:

• they are the one of the best criminal lawyers in Winnipeg

• they provide the best legal help

• they are the most trusted lawyer in Winnipeg

• they are the best assault lawyer in Winnipeg

• they are one of the best drive impaired lawyers in Winnipeg

• they are the top cyber fraud lawyer in Winnipeg

• they say when most lawyers give up and refuse to take up your case, they take it as a challenge to help you

• they say they are aggressive or will do what it takes to win

• they say they have a very high success rate

You also need to be careful about lawyers that claim they have won certain awards like “DUI Defence Attorney Top 10” from Attorney and Practice Magazine or “The National Trial Lawyers Top 40 Under 40” or if they advertise a rating from a website that they aren’t actually on, like Avvo.com. Some unethical lawyers claim they won awards that they actually didn’t.

Additionally, Manitoba lawyers cannot claim they are a specialist or an expert in a certain are. Instead, lawyers can only say they have a preferred area of practice. For example, I cannot say that I am a drive impaired expert, but I can say I am a criminal defence lawyer and a big part of my practice focuses on drive impaired cases.

A legit lawyer will not break the advertising rules in the Code of Conduct to try and get new clients. I know the advertising rules and make sure I am following them.

Trouble with the Law Society

A legit lawyer doesn’t break the rules

If a lawyer breaks one of the rules in the Law Society's Code of Conduct, the decision is publicly available. Before you decide to hire a lawyer, you may want to check to see:

1. If the lawyer has ever been disciplined by the Law Society of Manitoba (you can search by year or by the last name of the lawyer)

2. If the lawyer is currently under suspension, a restriction, injunction, or an undertaking with the Law Society of Manitoba

3. If the lawyer has an upcoming disciplinary hearing with the Law Society of Manitoba

A legit lawyer will not constantly be in trouble with the Law Society. I have not been disciplined, suspended, or on an undertaking with the Law Society of Manitoba.

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About the author

Michael Dyck is a partner at Rees Dyck Rogala Law Offices. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.