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Martin's Case — Assault (domestic) — Strike Guilty Plea Client: Martin B., Accused 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. 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 If I could strike the guilty plea, I could then attempt to get the charges withdrawn or dismissed.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. 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. READ THE
COURT TRANSCRIPT RE THE WITHDRAWAL OF THE REMAINING ASSAULT CHARGE |
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DISCLAIMER: Information on this site is not intended as legal advice. If you have a legal problem, seek advice from a lawyer. © 2003 — 2010. All Rights Reserved. Craig Penney. |