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. He had already plead guilty with another lawyer. His sentencing was a couple of months away. But Martin didn't feel good about what had happened. He didn't understand much of what had occurred in Court (english wasn't his first language), and he wasn't happy about getting a criminal record. He told me that he knew he couldn't reverse the guilty plea, but he hoped to receive a better result on sentence (he hoped to be granted an absolute discharge). I explained that coming to me after you've plead guilty is something like trying to fix your own car and then bringing it to a certified mechanic — the problem is always more complicated afterwards.

READ THE POLICE REPORT

Goals — Guilty Plea:  Martin's goal of obtaining a better result on sentence was too modest. He obviously had problems with the english language. Though I'm sure he could have ordered food confidently enough from a restaurant menu, his english was not at the level required to understand Court proceedings. 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. If I could get the guilty plea struck, then I could turn our attention to getting the charges withdrawn or dismissed. I also asked Martin to commence counselling with Rene to address the underlying issues that brought the state into their lives. They readily agreed.

Strategy — Guilty Plea:  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 found us to be in better shape than I had anticipated. 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 proceedings, the Crown elected to proceed "by summary conviction." There is 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. The Crown 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 that charge was withdrawn.

read the court transcript re striking the guilty plea

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

Strategy — Remaining Assault 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 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 what you see outlined in the 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 — Remaining Assault Charge:  As the morning of the trial approached, my confidence waxed. 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