Domestic Violence - Drop the Charges

In my practice, the two most common types of cases I see are DUIs and domestic assault. Domestic assault would include any sort of assault charge like simple assault, assault causing bodily harm, assault with a weapon, and aggravated assault. It would also include utter threats (to cause death or bodily harm). Domestic charges are between two people were in a romantic relationship at the time of the allegation including dating, common law, or marriage.

Now, many accused individuals want to know how the charges can simply be dropped. What many people do not understand is that the decision is NOT up to the victim, the complainant, or any witness. The decision about whether to proceed with charges or not is only up to the Crown Attorney. Having said that, many Crown Attorneys consider the input from victims and complainants.

In Manitoba, there is a government agency called Victim Services that is designed to help provide information and support to victims and complainants. Victim Services relays information to the Crown Attorney's office. To phone Victim Services in Winnipeg you can call (204) 945-6851. 

So, even if the victim or complainant does not want to come to court or testify, that decision may not be up to him or her. If the Crown Attorney is proceeding with the charges and a trial date is set, any witnesses that are needed for trial will be served with a subpoena (or there will be an attempt to serve them with a subpoena). A subpoena is a court order that requires a witness to attend court and provide evidence (testimony). If a witness is served with a subpoena and does not attend court, the Crown Attorney can request a warrant for his or her arrest. If a witness attends court and refuses to testify, the Judge may hold the witness in contempt of court - which is a criminal charge. Court proceedings are serious and many people need to learn that the charges may not simply be dropped if someone does not want to testify. That's why I recommend everyone who is charged with a domestic charge to contact me so you can have a criminal defence lawyer on your side. Criminal charges are serious and you need help to face them in court.

In almost every domestic violence case, there is a no contact order put in place either by the police or by a Judge. Sometimes, the victim or complainant requests a no contact and in other cases they don't, but it is up to the police or the Judge to decide what conditions are appropriate for bail. The order is on the person who was charged, which means he or she cannot contact or communicate with the victim or complainant. Typically, the no contact order is only one way - and the victim or complainant is legally allowed to contact the accused but if the accused responds, then the accused is breaking the law and can be charged with a new criminal offence. The accused can apply to delete the no contact order but it is in effect until the change is approved by a Crown Attorney or a Judge. 

The Criminal Code tells us that when someone is sentenced for a domestic violence crime, the judge must impose a more severe punishment. In other words, we want to deter crimes against domestic partners because the trust in the relationship is abused when there is domestic violence. Crimes against children and police officers also require a more severe punishment after a guilty plea or conviction. The consequences can be serious and long-lasting, so if you are charged with a domestic violence offence, you should contact me immediately to set up an appointment. Click here to visit the Contact page.

Related articles

• Domestic Assault (michaeldyck.ca)
• Preventing a Break and Enter in Your Home: Tips From a Criminal Defence Lawyer (michaeldyck.ca)
• Can you have alcohol in your car? (michaeldyck.ca)
• Cell phones and driving in Manitoba (michaeldyck.ca)

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. 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.

Firearms in Canada - Basics

Heads up! These are very simplified definitions about firearms that are designed to give you some basic knowledge. In reality, the rules and laws around firearms are more complex and detailed. If you have a specific question, please contact me to answer your questions or seek legal advice.

I have found many people do not understand some basics about firearms in Canada, including how you can get a firearm, who can get a firearm, and what kind of firearm you can buy. I think firearm are fascinating and the laws around them are technical and challenging.

In Canada, you need to have a firearms licence to be able to purchase, own, and store firearms and to purchase ammunition. If you do not have a licence, it is probably illegal for you to own or store a firearm. If you applied today, you would apply for a Possession and Acquisition Licence, also called a PAL. Much like a driver's licence, you need to take a course before you can apply for your licence called the Firearms Safety Course. You can contact Dennis Wiebe with 1st Shot Firearms if you want more details about taking the course. The course usually costs around $80. You could also simply challenge the exam too, if you are so bold. After you successfully complete the course, you apply to the government for you licence. The application form is lengthy and requires a photograph and two references. It is designed so that unsafe or higher risk individuals do not qualify for a firearms licence. The application fee is around $60-80. If your application is granted, you will be issued your PAL and your licence will arrive in the mail.

There are three classes of firearms in Canada.

1. Unrestricted firearms:  these are typically called long rifles and they include shotguns and rifles. The entire length of the firearm has to be a certain amount, so the barrel or the stock cannot be too short. Semi-automatic firearms are allowed along with bolt action, pump action, and single shot. For some of these rifles (semi-automatic centrefire), there is a maximum magazine of 5 rounds. You can use these types of firearms for hunting and target shooting.
2. Restricted firearms:  these are typically handguns and shorter barrelled rifles. Once again, the entire length of the firearm has to be a certain amount. Some handguns are considered too small and are not in this group. Once again, they can include semi-automatic firearms. You can only use these types of firearms for target shooting at a gun range. There are very strict rules about transporting these types of firearms and you are only permitted to go directly from your home to the gun range. You must get an Authorization To Transport (ATT) certificate and have it on you at all times.
3. Prohibited firearms:  these are typically firearms that only police or military can possess. They include small handguns, fully automatic firearms, larger magazine semi-automatic centrefire, and smaller rifles. In criminal cases, we sometimes see people charged with possessing a prohibited firearm if they have sawed off the barrel or stock of a rifle or if they tampered with a semi-automatic centrefire rifle to hold more than 5 rounds.

Firearms offences can be very serious in Canada and several have mandatory minimum jail sentences. However, there are some cases that have challenged the fairness of mandatory minimum jail sentences that I expect will work their way to the Supreme Court of Canada. Overall, firearms are only as dangerous as the hands they are in. If you are trained on the safety measures and have the appropriate licence, hunting and target shooting can be fantastic hobbies. If you do not have appropriate training or a licence, you need to make sure you do not become involved with firearms because the criminal consequences can be severe - and for good reason.

About the author

Michael Dyck is a criminal lawyer at Tom Rees and Company. He represents clients 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 TomRees.ca.

First court date jitters, part two

Okay, so you know the basic rules about for attending a first court date, but what actually happens when you get there? Do you have to enter your plea of guilty or not guilty right away? Most of my clients have no clue about what actually happens at a first court date, but this blog should give you a lay of the land. 

The first thing the magistrate or the judge will ask you is whether or not you would like a lawyer. If you have hired a lawyer already, the lawyer should be attending the court date with you or sending a student to address the court. Sometimes, lawyers email the Crown attorney or the Crown attorney's assistant so that they know what the plan is for the first court date. If you haven't hired a lawyer already, the court will gladly give you time to do that. If you need to apply for legal aid, you can apply with legal aid directly or you can visit the lawyer who you want to assist you. Most lawyers can complete a legal aid application with you at their office. I know that I do this all the time.

The court will want to know if you want to proceed in either English or in French.  Pick the language you feel most comfortable with because ALL of the legal proceedings must be done in the language selected. If you require an interpreter, you can request one as well but the court wants to know if the proceedings should be in English or French.

The Crown attorney or the Crown attorney's assistant will likely have disclosure to provide to you. Usually, it is a stack of 20-30 pages of materials. Disclosure is all the evidence the Crown attorney intends to rely upon to prove the case against you. Disclosure can include police narratives, police notes, written or video statements from complainants and witnesses, DVD video surveillance, forensic evidence like fingerprints or DNA, medical reports, expert reports, and the list goes on. You typically only received one copy of the disclosure, so it is important you keep it safe because your lawyer will want to review it with you at your first meeting.

Finally, the charges will be remanded to a new court date. What that means is, you will return to court in a few weeks to provide some updates.  

If you would like to, you are able to enter a guilty plea and be sentenced on your first court date. However, it is recommended that you take the time to seek some legal advice before you make any decision.  I would never recommend entering a guilty plea on your first court date.

The court will typically give you 2 to 3 months to complete the legal aid application process or to properly retain a lawyer. At a certain point, the court may mark your matter quote "for plea." If that happens, then you must confirm a date for a guilty plea and sentencing or a date for a hearing, such as a trial or preliminary hearing.

I hope this has been helpful to describe how a first court appearance works in Manitoba when you've been charged with a criminal offence. 

About the author

Michael Dyck is a criminal lawyer at Tom Rees and Company. He represents clients 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 TomRees.ca.

First court date jitters

One of the best parts about being a criminal defence lawyer is when I cross the border into the United States for a shopping weekend. Border officials typically ask, "Have you ever been to court?" I reply, "Pretty much daily... I'm a criminal defence lawyer." The look on their face is usually a combination of annoyance and frustration. I sit there grinning from ear to ear.

Most people don't go to court regularly and have no idea how it works, what to say, or what to wear. So, here are a few tips for a first court appearance in Manitoba:

1. Do not chew gum. A clerk, a magistrate, or a judge will likely tell you to spit it out and then wait for you to follow orders. In any event, chewing gum usually makes you look less sophisticated so just avoid it when heading to court.
2. Do not use your cell phone. Turn it on to vibrate or off. I guarantee you'll get a few glares if your Rhianna ringtone starts blaring in the middle of court. You can't text while you're in a courtroom either and definitely do not answer a call. Lawyers are allowed text and email in court, so if you're really anxious to use your phone in court, just do 3 years of law school and you're good.
3. Arrive a little bit early. Parking can sometimes be rough in downtown Winnipeg or there can be lineups to get past security. Plan to be there 10-15 minutes early. If you miss your court appearance, you could get an additional criminal charge and a warrant for your arrest.
4. Wear appropriate clothing. You do not need to come to your first court date in a suit and tie, that can be a bit over the top but everyone is judged on how they look. Do not wear clothes that have obscene words or images on it, so you can leave your "I heart weed" shirt at home. Women should not wear revealing clothing, court isn't a night club or a place to find your next boyfriend. I recommend plain shirts or hoodies. A pair of jeans with a button down shirt is also a good pick. At a trial or a sentencing hearing, more formal clothing is recommended.
5. Take off your hat in court. Nothing on your head when you're in court including hats or sunglasses. The court may grant exceptions for religious headwear.
6. No food or drinks in court. Guzzle down that Timmies before you get to court. Drinks are a big no no and you'd be crazy to think you could get away with eating in court.
7. No weapons or drugs. Pretty simple really, you go through security at the courthouse so don't bring illegal items to court with you. You really shouldn't have these things at all... but definitely do not bring them to court.

What will actually happen at my first court date? Great question, but I'll save that for the next post.

About the author

Michael Dyck is a criminal lawyer at Tom Rees and Company. He represents clients 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 TomRees.ca.

Let's get cracking

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The Canadian justice system or criminal law is something most people never have to think about, and for good reason. Unless you went to law school or have been charged with a crime, you don't really need to know how it works. I don't know how my car works but I know that when something is wrong that can't be fixed by filling the tank with more gas, it is time to call up a pro.

My goal is to create regular posts about different aspects of the justice system in Canada including stories in the news that can help average people understand how this whole thing works. I am going to use a more casual style of writing and avoid legalese (fancy lawyer words or phrases in latin such as "ex parte") as much as possible. I will also focus on some basic tips and tricks for people who have been charged with a crime. The best tip is no secret - get some legal advice.

I am going to invite all readers to comment on these posts. If you have a specific question or topic you want me to address, let me know. But please don't ask me what you should do in your case, because I'm not going to provide legal advice in a blog. Instead, email me directly and we can set up a meeting.

About the author

Michael Dyck is a criminal lawyer at Tom Rees and Company. He represents clients 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 TomRees.ca.