Am I eligible to have my charges withdrawn through diversion?

dv2011(wifecalled911)

本文发表在 rolia.net 枫下论坛What is “diversion”? Diversion means just that: an individual who is charged with a criminal offence is diverted out of the Court system and asked to provide some sort of reparation to society for their alleged wrong. This reparation will take the form of community service, a donation to charity, or a more specific program tailored to the individual’s specific life situation (as is often the case with people suffering from mental health issues). Upon completion of whatever terms the diversion is dependent upon, the charges are “withdrawn” meaning that you remain legally innocent of the charges. Since you are presumed innocent when you are charged until proven guilty, you remain legally innocent when your charges are withdrawn because the allegations were never proven in a Court of law against you.

Who decides whether I am eligible for diversion? There is only one party who has the power to determine a person’s eligibility for diversion, and that person is the Crown Attorney (or the Office of the Crown Attorney). When a file first comes to the Crown’s office after bring processed by the police department, an initial screening of the file is made by the Crown Attorney. If the Crown Attorney decides that you are eligible for diversion, then the brief will be marked up accordingly and typically that accused person will be advised of that decision on their first day in Court. The factors that the Crown takes into account when assessing a file include, but are not limited to:

•Whether the person has a criminal record or past dealings with police;
•Cooperation with police upon arrest;
•The seriousness of the offence (amount of money lost, alleged harm done, etc.);
•The cost of prosecuting the case in comparison to the seriousness of the offence;
•The impact a criminal record may have upon an individual accused in comparison to society’s interest in ensuring are punished for wrongdoings; and,
•The wishes of the alleged victim.
It is also important to know that simply because a file is initially screened as ineligible does not mean that is the final decision. Despite a Crown Attorney’s initial view, they may be persuaded by legal counsel that a person is eligible after all. For this reason, it is wise to retain an experienced criminal lawyer to ensure that all possibilities for diversion are canvassed.

What kind of charges are eligible for diversion? Technically, any type of charge may be eligible for diversion; however, the most common cases where diversion is routinely offered is theft under, possession of small amounts of marijuana, and solicitation of prostitution. Other offences where diversion is offered, albeit less common, include: mischief offences, assault, fraud, being found in a bawdy house, harder drug possession, and crimes where there is no large amounts of money lost and no serious physical violence. Again, retaining a lawyer could help convince a Crown Attorney to offer diversion when that person may not be initially eligible.

Do I have to admit to anyone what I did? Generally speaking, when a person is accepted into the diversion program, it is contingent upon that individual accepting responsibility for their wrong. An extensive confession is not required. Typically, the social worker who is interviewing the person for an initial intake will ask questions like:

•Why did you do this?
•Do you understand this is wrong?
•Do you appreciate the costs to society in your actions?
•Do you appreciate the harm you have done to yourself, family, and friends and personal reputation in committing these offences?
•Have you learned your lesson?
If that worker feels that the person has learned their lesson and will not engage in similar acts in the future, that person will be advised what they will have to do (community service, etc.) in order to have their charges withdrawn.

Is what I tell the diversion worker admissible against me at trial later on? Fortunately, all of the discussions you have with the diversion office for these purposes is confidential and cannot be used against you in Court later on. Section 717(3) of the Criminal Code of Canada clearly states:

No admission, confession or statement accepting responsibility for a given act or omission made by a person alleged to have committed an offence as a condition of the person being dealt with by alternative measures is admissible in evidence against that person in any civil or criminal proceedings.

This section is placed here by legislation to facilitate people who are eligible for diversion or “alternative measures” to engage in the process without the fear of reprisal for their admissions later on.

Now that I am eligible for diversion, what happens next? Once you are eligible, you will return to Court and adjourn your case for as much time as required to complete the terms of diversion. For example, if a person is asked to complete 35 hours of community service, they will likely be adjourned for 3-4 weeks for them to complete it.

Ok, I completed my terms, now what? When you return to Court after completing your terms of diversion, you or your lawyer will present the proof thereof to the Crown Attorney and Court and if everything is done in accordance with the agreement, your charges with be withdrawn.

Should I retain a lawyer for this? Retaining a lawyer is always a prudent thing to do no matter how insignificant the charge may be; however, this is always a personal choice and some people choose to represent themselves. Some things to consider is that a lawyer can:

•Provide guidance, confidence, and ease of mind throughout the process;
•Appear on your behalf so that you do not need to miss work or feel embarrassed about being present in Court;
•Negotiate a better settlement with the Crown Attorney;
•Familiarize you with the proceedings and what is expected to happen;
•Follow up with the police department and request that your fingerprints, records, and photographs be destroyed upon the withdrawal of your charges;
•Provide you with the certified Court documentation that proves your charges were withdrawn更多精彩文章及讨论，请光临枫下论坛 rolia.net

(#6656965@0)
Last Updated: 2011-5-4
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What you need to know about domestic assault charges -dv2011(wifecalled911); 2011-5-4 {6152} (#6656962@0)

本文发表在 rolia.net 枫下论坛Introduction

“Domestic cases” are those that involve allegations of violence or threats of violence between family members. Although there are many situations in which charges of a domestic nature can arise, the most common example is one in which a man is charged with having assaulted or threatened his female partner (girlfriend or spouse).

The Incident

In many cases, domestic-type charges arise from either an argument or a physical confrontation between spouses. In many of these situations, the woman will call “911” to make a complaint about her husband’s behaviour towards her. This may involve an allegation of violence or threats towards her. In response, the police will be sent to the home to investigate the matter. Usually, two police officers arrive on the scene. One interviews the female while the other talks to the male. An allegation of criminal behaviour by the wife typically results in the arrest and charging of the husband.

The Arrest

The husband is placed in handcuffs and taken to the police station. Although the police have the discretion to process the husband and release him from the station, this is rarely done. Instead, the husband is detained in custody until he can be taken to court for a bail hearing. The bail hearing may take place the same day, the next day, or even several days later. Two typical conditions of release are 1) that the husband not communicate either directly or indirectly with his wife and 2) that he not attend the home address (this is usually where the wife is staying). This latter condition can be placed on the accused by the court even in a situation where the accused is the sole legal owner of the property. This means that he will have to find another place to live until the matter is concluded. To get this or any other bail condition changed, an application for a bail review must bebrought in the Superior Court of Justice. In some instances the Crown may be persuaded to consent to a variation in the bail. This will obviate the need for a bail review application.

Difficulties regarding bail conditions should be discussed with a lawyer. A diligent lawyer will aim to understand the concerns of the client, educate the client about what options are available, outline the timelines, costs, and procedures involved, and recommend a course of action.

The Investigation

Following the police interview of the wife at the home, several things may happen. If there appear to be any physical injuries, they may be photographed by the police. The wife may be asked by the officer to review and sign a written statement or she may be asked to attend the police station to give an audiotaped or videotaped statement.

Trying To Get The Charge Withdrawn

The wife may have called the police under the mistaken belief that they would come to the house to mediate (what she considers to be) a marital dispute or scare some sense into her husband. When she realizes that he is being arrested and will not be allowed to return to the house, often times regret sets in. Believing that it is her complaint to withdraw, she may try to recant her statement or withdraw the charges. Finding that the police will not withdraw the charges, she may even attend court to speak to the Crown or someone in the Victim Witness Program. Her request to have the charges withdrawn will be unsuccessful and she may be exposing herself to criminal charges. Once laid, “domestic charges” will rarely be withdrawn by the Crown. Faced with these circumstances, a complainant (the wife) wishing to have the charges withdrawn should consult her own lawyer regarding an appropriate course of action.

Timelines

Usually the only “quick way out” of this type of situation for an accused is through a guilty plea. Otherwise, “domestic charges” can often take months to wind their way through the court system. This often means that families will be apart for long periods of time. Where there is a desire to reconcile, legal representation should be sought at the earliest possible stage to avoid unnecessary delay and hardship. A good lawyer will be able to take appropriate action to ensure that the case moves ahead as quickly as possible.

The Trial

The accused should write down everything that occurred as soon as possible to prepare for a potential trial. This will help preserve his memory of the events. If he has suffered any injuries as a result of the incident, he should have these properly documented and photographed. The police should not be relied upon to document and photograph injuries of the accused.

At trial, the complainant will usually be called as a witness by the prosecution to prove the case against the accused. In some situations the witness may testify to a different set of circumstances than that complained of to the police. Alternatively, the witness may testify that she has forgotten what happened. In either situation this will likely result in the Crown making an application to the court to have the witness declared a hostile witness or to have other previously recorded evidence admitted against the husband.

The complainant may not be present at the trial for various reasons. Depending on the circumstances of the case, sometimes this will work in the accused’s favour and sometimes it will not.

At the conclusion of a trial there will usually either be a finding of “guilty” or “not guilty”. A finding of “not guilty” ends the matter and the accused person is free to resume his life as it was before the charge. A finding of “guilty” is followed by the sentencing process. Sentencing may or may not result in jail time. It will, however, usually result in some period of probation. Probation orders typically include conditions that require the accused to attend some form of counselling and not to have any contact with the complainant except with her written and revocable permission.
Facing a “domestic charge” can be an overwhelming experience. An understanding of your situation is crucial dealing with the problem in an effective manner.更多精彩文章及讨论，请光临枫下论坛 rolia.net

Am I eligible to have my charges withdrawn through diversion? -dv2011(wifecalled911); 2011-5-4 {6238} (#6656965@0)
本文发表在 rolia.net 枫下论坛What is “diversion”? Diversion means just that: an individual who is charged with a criminal offence is diverted out of the Court system and asked to provide some sort of reparation to society for their alleged wrong. This reparation will take the form of community service, a donation to charity, or a more specific program tailored to the individual’s specific life situation (as is often the case with people suffering from mental health issues). Upon completion of whatever terms the diversion is dependent upon, the charges are “withdrawn” meaning that you remain legally innocent of the charges. Since you are presumed innocent when you are charged until proven guilty, you remain legally innocent when your charges are withdrawn because the allegations were never proven in a Court of law against you.

Who decides whether I am eligible for diversion? There is only one party who has the power to determine a person’s eligibility for diversion, and that person is the Crown Attorney (or the Office of the Crown Attorney). When a file first comes to the Crown’s office after bring processed by the police department, an initial screening of the file is made by the Crown Attorney. If the Crown Attorney decides that you are eligible for diversion, then the brief will be marked up accordingly and typically that accused person will be advised of that decision on their first day in Court. The factors that the Crown takes into account when assessing a file include, but are not limited to:

•Whether the person has a criminal record or past dealings with police;
•Cooperation with police upon arrest;
•The seriousness of the offence (amount of money lost, alleged harm done, etc.);
•The cost of prosecuting the case in comparison to the seriousness of the offence;
•The impact a criminal record may have upon an individual accused in comparison to society’s interest in ensuring are punished for wrongdoings; and,
•The wishes of the alleged victim.
It is also important to know that simply because a file is initially screened as ineligible does not mean that is the final decision. Despite a Crown Attorney’s initial view, they may be persuaded by legal counsel that a person is eligible after all. For this reason, it is wise to retain an experienced criminal lawyer to ensure that all possibilities for diversion are canvassed.

What kind of charges are eligible for diversion? Technically, any type of charge may be eligible for diversion; however, the most common cases where diversion is routinely offered is theft under, possession of small amounts of marijuana, and solicitation of prostitution. Other offences where diversion is offered, albeit less common, include: mischief offences, assault, fraud, being found in a bawdy house, harder drug possession, and crimes where there is no large amounts of money lost and no serious physical violence. Again, retaining a lawyer could help convince a Crown Attorney to offer diversion when that person may not be initially eligible.

Do I have to admit to anyone what I did? Generally speaking, when a person is accepted into the diversion program, it is contingent upon that individual accepting responsibility for their wrong. An extensive confession is not required. Typically, the social worker who is interviewing the person for an initial intake will ask questions like:

•Why did you do this?
•Do you understand this is wrong?
•Do you appreciate the costs to society in your actions?
•Do you appreciate the harm you have done to yourself, family, and friends and personal reputation in committing these offences?
•Have you learned your lesson?
If that worker feels that the person has learned their lesson and will not engage in similar acts in the future, that person will be advised what they will have to do (community service, etc.) in order to have their charges withdrawn.

Is what I tell the diversion worker admissible against me at trial later on? Fortunately, all of the discussions you have with the diversion office for these purposes is confidential and cannot be used against you in Court later on. Section 717(3) of the Criminal Code of Canada clearly states:

No admission, confession or statement accepting responsibility for a given act or omission made by a person alleged to have committed an offence as a condition of the person being dealt with by alternative measures is admissible in evidence against that person in any civil or criminal proceedings.

This section is placed here by legislation to facilitate people who are eligible for diversion or “alternative measures” to engage in the process without the fear of reprisal for their admissions later on.

Now that I am eligible for diversion, what happens next? Once you are eligible, you will return to Court and adjourn your case for as much time as required to complete the terms of diversion. For example, if a person is asked to complete 35 hours of community service, they will likely be adjourned for 3-4 weeks for them to complete it.

Ok, I completed my terms, now what? When you return to Court after completing your terms of diversion, you or your lawyer will present the proof thereof to the Crown Attorney and Court and if everything is done in accordance with the agreement, your charges with be withdrawn.

Should I retain a lawyer for this? Retaining a lawyer is always a prudent thing to do no matter how insignificant the charge may be; however, this is always a personal choice and some people choose to represent themselves. Some things to consider is that a lawyer can:

•Provide guidance, confidence, and ease of mind throughout the process;
•Appear on your behalf so that you do not need to miss work or feel embarrassed about being present in Court;
•Negotiate a better settlement with the Crown Attorney;
•Familiarize you with the proceedings and what is expected to happen;
•Follow up with the police department and request that your fingerprints, records, and photographs be destroyed upon the withdrawal of your charges;
•Provide you with the certified Court documentation that proves your charges were withdrawn更多精彩文章及讨论，请光临枫下论坛 rolia.net

I heard a case that the police's lawyer withdrew the charge. Is this the best in this kind of case? -royrose819(rhly); 2011-5-4 (#6657074@0)

@Hamilton

Am I eligible to have my charges withdrawn through diversion?

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