Martin's Case — Assault (domestic) — Strike Guilty Plea

Client:  Martin B., Accused
Complainant:  Rene, Martin's wife
Charges:  Assault (2x), Criminal Code, s. 266

Background:  Martin was well on his way to acquiring a criminal record. With another lawyer, he had already plead guilty. His sentencing was only weeks away. Martin didn't feel good about what had happened in Court. English was not his first language, and he "didn't understand much." He also wasn't happy about getting a criminal record. He thought he couldn't reverse the guilty plea, but he hoped to receive a better result on sentence (perhaps an absolute discharge). I explained that coming to me after he had plead guilty was something like trying to fix his own car and then taking it to the mechanic — the problem may still be fixable but it's more complicated.

READ THE POLICE REPORT

Goals — Guilty Plea:  Martin's goal of a better sentence was too modest. I wanted to reverse the guilty plea. A guilty plea can be struck if it was not informed or not voluntary. It can also be struck to prevent a miscarriage of justice. If I could strike the guilty plea, I could then attempt to get the charges withdrawn or dismissed. I also asked Martin to start counselling with Rene to address the underlying issues. They readily agreed.

Strategy — Guilty Plea:  Martin obviously had problems with english. In Court, someone should have asked Martin if he needed an interpreter (especially since they are supplied at no cost). The guilty plea could be struck on this basis alone. I first ordered a copy of the Information, the official Court document containing both charges. I also ordered a copy of the transcript of the guilty-plea proceedings. Having reviewed these documents, I spotted a flaw in the proceedings. There were two assault charges. One was from the day of his arrest. The other was from six months before. During the guilty-plea proceedings, the Crown asked Martin to plead guilty to the earlier charge. As you can see in the police report, there was a six month gap between the first alleged assault and Martin's arrest. At the guilty plea, the Crown elected to proceed "by summary conviction." There is a six-month limitation period for such proceedings. Martin had plead guilty to the first assault. It was out of time by one day.

Results — Guilty Plea:  I wrote to the Crown about the problem. They agreed that the guilty plea should be struck. They also agreed not to proceed on that first assault charge. We then arranged for the case to be brought in front of the Judge. The guilty plea was struck and the charge withdrawn.

READ THE COURT TRANSCRIPT RE STRIKING THE GUILTY PLEA

Goals — Other Charge:  Martin was still left with an assault charge. We scheduled the trial for an early date.

Strategy — Other Charge:  Martin and his wife were living together again and doing well in counselling. I felt that, on the morning of the trial, there was a decent chance that the Crown might not proceed, especially since I expected to have a positive report from the counsellor. If the Crown did proceed, I had information that the anticipated testimony would be decidedly more favourable than the police report. Judges make decisions based upon the evidence or lack thereof, not on the police report. We were ready to fight the charge at trial if necessary.

Results — Other Charge:  As the trial approached, my confidence waxed. Why? I had an excellent report from the counsellor, and I learned that the police had failed to subpoena Rene as a witness. On the morning of the trial, the Crown kindly agreed to have a look at the counsellor's report. Based on the report and the failure to serve the subpoena, the Crown decided that it wasn't in the public interest to proceed. The Crown didn't ask Martin to sign a peace bond. The charge was withdrawn.

READ THE COURT TRANSCRIPT RE THE WITHDRAWAL OF THE REMAINING ASSAULT CHARGE
READ MARTIN'S TESTIMONIAL