By Matt Paul
November 15, 2018
In part one of this series I talked about Legal Aid, Duty Council and Three choices that people have when faced with a criminal charge in Ontario.
In part two I talked about different types of lawyers and expectations.
In this the third segment I want to take some time to talk about my experience representing myself and a process that I undertook. My method proved effective and yielded the desired result. I received a not-guilty verdict by the judge dismissing the charges against me.
When you are charged with an offense you need to reflect on the situation, think about what happened leading up to the arrest, think about what happened at the time of the arrest and most importantly what did the people involved do or say. Know your rights, in order to be charged with an offense the police officer must have some reasonable grounds to arrest you. Meaning he or she must have some evidence that you did something against the law. An officer can obtain this evidence from a 911 call, a bystander or another party involved in the incident. The officer can also gain this evidence by what is observed on scene. The officer does not need to prove the case against you, there only needs to be a likelihood that something against the criminal code was being done by you. Depending on the officer and the circumstances this threshold may be rather low (in the case of a person with a record or low standing in the community) or rather high (in case of a person with no prior convictions or record or a high standing in the community). The reality is you need to know yourself to know your rights and chances are if you have been arrested and find yourself in court there is a reason whether just or unjust why you are in the situation. The key here is to make sure that you were not doing anything illegal at the time of the police being called or if you were that the officer would have no ability to infer or determine that the illegal activity at the time. If you can prove that you were not doing anything and there was no ability for the officer to determine what you are charged with you can invalidate the arrest. You will not be able to do this right away however after a not guilty plea, at trial you will ask the witnesses and the officer questions that will raise issues for the judge to consider when a decision is rendered later. The first thing you need to attack is the arrest. Then you can attack the charge.
In order to attack the arrest and the charge it is necessary to receive information from the Crown Attorney. This information is all the evidence and notes from the police regarding their investigation. It is called disclosure. The Crown is required by law to provide you with all the information they have against you that they may or may not use. This includes witness statements, either written or videotaped, photos or other information. The Crown will try to give you only the bare minimum at your first appearance and will tell you that you have to go to the police to obtain photos and video evidence that may apply to your case as a self-represented party. If they try this, you can and should make a request to the judge to order a release of this information to your person with a 129 order imposing conditions on your use of the information and conduct in order for you to view it in privacy. There is no reason why you need to have any further contact with the Police that arrested you. Get the information so you can review what the crown has to use against you. You need access to this 24 hours a day because in order to win your case you need to think about your defense and ideas can come at any time. If you have been charged with an offense, the police and crown are not your friends they are parties to a legal matter that has the potential to ruin your life.
So now you have all the information that may or may not indicate you did anything wrong but can be used against you. I say may not indicate that you did anything wrong because regardless of what is contained in the disclosure, the crown will use it to attempt to obtain a conviction. The crown will imply wrongdoing and present the information to the judge in a way that will justify a finding of guilt. That is their job. Your job is to question every piece of information and every word of every witness in an effort to attack the certainty of it, the honesty of it and ultimately the likelihood that it in effect means that you did what the police and Crown are alleging. If you have photos, documents, people or information that contradicts the information you will introduce it in your defense (discussed in a later segment) however the role right now is to dissect every piece of information the crown has.
The context you need to dissect the information by is found in the criminal code of Canada. You were charged with an offense contrary to the criminal code of Canada. The code is available online. You can search the title of your offence in the act. You need to identify what the offence is and the “essential elements” of a conviction. This is what the Crown must prove on reasonable grounds in order to convict you. Mine was Assault. I will include the referenced text in the criminal code:
265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
Marginal note:Accused’s belief as to consent
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s. 19.
266 Every one who commits an assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
R.S., c. C-34, s. 245; 1972, c. 13, s. 21; 1974-75-76, c. 93, s. 22; 1980-81-82-83, c. 125, s. 19.
Now you know that the crown had to prove that I acted with the intentional knowledge of the act of assault (mens rea – mentality) and that I actually did the act (actus reus). If judge does not believe that they prove the elements, I would win. So I need to defend myself and refute any notion that the elements above were probable and reasonable or present a sequence of events in the alternative that is likely or at least possible in the alternative in order to win. You need to do the same. This is where your evidence ie. Witnesses, photos, information etc. comes in handy. You will need to have believable evidence that disproves the claims or presents different and similarly plausible sequence events than that of the Crown attorney.
In the next segment, I will talk about a free website where you will want to research similar cases and results to the charge that you are facing in order to cite information before the judge in your case as it will help to strengthen your case. Stay tuned and check back for the next article.
The author is not a lawyer. This is not legal advice. It is a literal representation of the facts as they appeared to the writer from personal experience.