Sexual Offences

What are the different types of sexual offences?

Mark: Hi, it’s Mark Bossert from Top Local Lead Generation. We’re here with Vancouver Criminal Lawyer Troy Anderson. We’re going to talk about Sexual Offences, kind of a timely topic in Canada right now. How’re you doing today Troy?

Troy: I’m well thank you, and you?

Mark: I’m good. So, what are the different types of sexual offences?

Troy: Well, in Canada there’s probably around twenty, probably closer to thirty years ago, what Parliament did is what they said simplify some of the sexual offences in the Criminal Code and take some of the stigma away and so what they did away with was the old offences of rape, indecent assault and all those sort of things and we have what initially began as the catch all offence of sexual assault and we got some other offences that have arisen since then so we have indecent act which has always been in the Criminal Code, we’ve sexual exploitation, invitation to sexual touching, some of those relate to offences against children primarily and so what was supposed to be a simplification has of course evolved into a whole number of very complicated and often interrelated sexual offences within the Criminal Code.
I think the part where for example it gets confusing is the offence of sexual assault itself because sexual assault is a very all-encompassing term and it can and is used to refer to a wide range of offences which can encompass something as simple as an unwanted pat on someone’s rear end all the way up to what we used to call rape which is of course non-consensual sexual intercourse. So being charged with a sexual assault, when someone tells me I’ve been charged with a sexual assault that tells me actually very little about the substance of the offence or the investigation because it carries such a wide range of possible scenarios.
That’s a very, very short list of some of the sexual offences. The commonly charged sexual offences in Canada and that’s not even getting into some of the perhaps, more unique types of offences and I think we’ll talk about that a little bit later, some of the, for example related to the internet or other electronics.

Mark: So, how does the issue of consent come into play since that’s sort of the main news headlines right now?

Troy: Well as in any assault, sexual assault involves the non-consensual application of force and so a sexual act obviously involves some touching which is the legal definition of the application of force and when what is done during the course of a sexual encounter, if it is consensual throughout then you have sex, if it’s begins non-consensual at any point during it, it becomes non-consensual then that is the offence of sexual assault and so some of the stories and hypotheticals that have been in the news lately refers to a scenario wherein there was certain types of behaviour that has been agreed upon at the beginning of a sexual encounter which would be consensual sex but things progressed to the point where consent is withdrawn and at any point where consent is withdrawn where up to that point it had been sex becomes a sexual assault and that’s one of the issues that we deal with now. In keeping in line with that consent refers to, I’m sorry I should say lack of consent actually refers to elements of the offence that must be proven beyond a reasonable doubt by the Crown but in certain types of sexual offences consent is actually not an issue so if you have one, if you have an offence where there is a willing participant but who is under the age of consent, for example with a person who is 25 years of age and so whether that sex is willing or not it still remains a crime because legally that person is unable to give consent to sex.

The similar scenario is much like what’s been in the news recently, if it results in bodily harm so for example, let’s give an extreme example of a broken limb, consent is initiated because the laws says and it’s always been a clear category because you can’t consent to bodily harm so consent is the central issue in sexual offences but there are certain types of offences or certain types of scenarios where consent ceases to be the primary concern.

Mark: So what about electronic or computer based sexual offences, we kind of brought that up already via the internet.

Troy: Right, and what we used to see was often called the distribution for example of obscene material and that has fallen sort of into disuse. What we have now is very specific offences relating to the possession, production and distribution of things like child pornography and that’s generally what we’re discussing when we’re discussing electronic types of offences and so it’s often the file sharing of online pornographic images but it’s not limited to that. There’s also the offence of voyeurism and we’ve got some well publicized cases here in the lower mainland where people have been in bathrooms for example and public places, hoping or accusing evidently at least trying to capture people in a state of undress in what would otherwise be a private place and so that’s the offence of voyeurism.

Mark: So what do I do if I think I’m under investigation for a sexual offence?

Troy: Well, what I typically say is, I can’t think of a worse thing to be accused of. The stigma that is attached to a sexual offence, even if it’s never charged and we’ve seen that in the news lately, the stigma that gets attached to a person’s name at the mere mention of a sexual offence is devastating. I’ve have actually seen it ruin people’s lives even when they’re ultimately completely exonerated and so that is one of the ways where I would suggest getting in touch with a lawyer immediately especially if you are accused of something related to a family member or specifically a child. And so it’s something where you need to get in touch with a lawyer quickly. It is the sort of case that sometimes involves the use of search warrants, those will often be very aggressive in trying to get a statement from an accused so it’s very important to know your rights immediately and so that’s why I say it’s crucial to get legal advice as soon as you possibly can so you know how to deal with the situation as it unfolds because it sometimes unfolds very, very quickly.

Mark: So we’ve been talking about sexual offences in Canada, in BC specifically with Troy Anderson; he’s a Criminal Lawyer here in Vancouver. You can reach him at 604-638-9188 or you can check out his website troyandersonlaw.com.; full of great information. Thanks a lot Troy

Troy: Thank you.

Negotiating a Plea Bargain

Negotiating a plea bargain. Does this actually happen or is this just on TV?

Mark: Hi, it’s Mark Bossert from Top Local Lead Generation and we’re talking with Troy D. Anderson, criminal defence lawyer in Vancouver, BC. How you doing today Troy?

Troy: I’m doing very well, and you?

Mark: I’m good. So today we’re going to be talking about plea bargains and being a cop show aficionado, boy there’s a lot of weird things that go along with that. How true is some of that stuff about plea bargains and what happens under questioning with the police?

Troy: Well, I think you’re talking about a couple different things – under questioning with the police is something that would happen very early in the investigation – so that’s probably a topic for another whole discussion. Plea bargaining is something that occurs between the lawyers once the charge has been laid. So when we’re talking about plea bargaining, we’re talking about the period after you’ve been charged in the lead up to your trial. It can occur at the very beginning, for some people it occurs before they’ve even had a bail hearing depending on what their instructions are. For many people it occurs in the immediate aftermath of them being charged after they’ve had their bail hearing but before the matter is set for trial. And that’s the most common time to have a plea bargaining discussion. For example, on a simple matter, you may been charged with theft for example, so it’s alleged that you have been shoplifting and you retain a defence lawyer. Your defence lawyer will approach the Crown to discuss among other things your own personal background, the sorts of things that put you in the situation that saw yourself getting arrested and will look at the strength of the Crown’s case. Si what I typically do, is I get a copy of the police report and all the supporting documents, the witness statements, the photographs, the video taped evidence and the like and we go over it with an eye to preparing for a trial and if there is an avenue to explore then we do it at that time. So for example, the best plea bargain you can get is when you get the disclosure and there’s a defence available that is bullet proof and at that point you may choose to go to the Crown and say, “look this is the defence and this is why you can’t win”. The ultimate plea bargain is the one that results in the charge being dropped. More common is when you’re dealing with a Crown prosecutor that you know and trust, you will point out to them what we call are the weaknesses in the Crown’s case. So there may be an issue with regard to identification for example, that is, is there weaknesses in proving your client was the one that committed the crime. There may be weaknesses in some of the technical evidence and if you’re dealing with, particularly an experienced, Crown prosecutor and someone you can trust, you can have that frank discussion which may result in a plea to a lesser offence for example and may result in a vastly reduced sentence because you are being given credit for not putting the Crown to the proof of their case. If they’re convinced that they may lose, that’s the time where you can get some pretty good deals. So yes, plea bargaining does happen and frankly if there wasn’t plea bargaining, I think the Courts would grind to a halt because if everyone asserted their rights to a trial we would never get anything done. I think the statistic is something in excess of 90% of people charged eventually plead guilty.

Mark: Wow, so I guess that sort of leads into the obvious question, why would I consider a plea bargain?

Troy: Well, most of the time you would consider a plea bargain – the first question that I always ask a client is – ‘look, have you done anything wrong?’ – because if the answer is no I have not, then I don’t even explore a plea bargain. A plea bargain presupposes you have committed an offence. It may not be the one you’ve been charged with but you have to have committed an offence. A classic example is you’ve been charged with drunk driving, you don’t admit to drunk driving but you do admit to some bad driving which may give rise to a plea, for example, under the Motor Vehicle Act instead of the Criminal Code. And so as long as you are prepared to admit to some sort of wrong doing there is generally something that can be at least explored in regard to a plea bargain. So the question is why do you get it? Well for many people it’s certainty, so instead of for example, instead of being charged with impaired driving, rolling the dice to try to win at trial which you may or you may not depending on how the evidence looks and what your own story is going to be – you may choose the certainty of paying a fine and maybe even getting a short driving suspension under the Motor Vehicle Act instead of running the risk of a Criminal Code. If you’re charged with a minor offence, you may choose to participate in the Alternative Measures Program rather than risk a criminal conviction for for example, theft or assault. The most extreme example which occurred in a case that I did a few years ago, a fellow was charged with first degree murder and part way through the evidentiary hearings some of the Crown’s evidence was excluded and he was offered a plea to manslaughter and he took that plea of course, because he received a sentence of, I think it was about six years instead life in prison with no chance of parole for twenty five years. So, yes there are very, very compelling reasons to accept a plea bargain in the right circumstance. I tell my clients, most of the time there’s a deal available, it just depends if it’s the right deal for you.

Mark: I know often, in our legal system we call things different than what they are, what are commonly understood because of our watching American tv – so is it called a plea bargain in the law system here?

Troy: Well, not really I mean, there’s a lot of things we call it, the most common thing you hear in Court is discussions toward a resolution or resolution discussions or something to that affect. We don’t really call it plea bargaining, I never understood why we don’t call it that. The terminology seems to revolve around resolution discussion, but essentially it is the same.

Mark: Alright, is there anything else you would like to say about this particular subject?

Troy: Well, what I always tell my clients to keep in mind if you’ve been charged with a crime or if you think you’re going to be charged with a crime, is to keep an open mind and let your lawyer explore whatever avenues he or she can. So I tell my clients, look, unless you’re going to tell me “I have absolutely done nothing wrong at all” then I am going to explore a plea. You will learn what is being offered at some point but what I appreciate is my clients give me the freedom to do that so they can make an informed decision about what they are instructing me on. So for example, somebody may say, I’m not pleading to impaired driving because I’m a bus driver, for example, and I can’t have an impaired driving conviction. Well, that doesn’t necessarily preclude me from exploring something else that may allow that person to keep their job. I always tell them, let me do my job and then I will come to you to get some instructions on how we proceed from here and while that’s going on, there may be other things the client doesn’t know about for example – there may be proceedings in civil forfeiture that is going on in the background. For example if you’re charged with a drug offence, you may be looking at possible plea negotiations, but there may also be some civil forfeiture proceedings going on that may result in the government trying to take your house, your car or even money. You also have to keep that in mind – what other potential proceedings are ongoing and what are the complete consequences of a conviction whatever that may be. An example that many people rely upon, particularly in dealing with domestic assaults, is they may be asked to consider agreeing to a Peace Bond under section 8:10 of the Criminal Code which works very well for a number of people but not if you’re a school teacher or not if you’re a day care operator because it carries ramifications when you go for a criminal record check if you’re trying to work with vulnerable people. So there’s a great deal of things that go into plea negotiations, a great deal to consider and I think it’s important that you get legal advice with regard to everything surrounding the plea negotiations before you make a decision. I think in many cases, it’s good to in the very least no matter how simple or how trivial perhaps the offence may seem, get some legal advice so you know exactly what you’re getting into.

Mark: Yeah, it seems that the water gets deep pretty fast and having a lawyer on your side is probably a really good idea if you’re in any kind of trouble.

Troy: Well, you know if it was my first time swimming I’d want the life guard there with me.

Mark: Exactly. So thank you Troy. We’ve been talking with Troy D. Anderson of troyandersonlaw.com – you can reach Troy at 604-638-9188 and Troy would be happy to discuss all issues of your case that might be coming up and he’ll look after you. He’s one of the best lawyers in BC. Give him a call. Thanks a lot Troy.

Troy: Thanks Mark

Mark: Talk to you next week

Troy: You bet

Drug Offences – What Are The Charges And How Are They Investigated?

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Drugs and drug offences with Vancouver Criminal Lawyer, Troy Anderson

Mark: Hi, it’s Mark Bossert from Top Local Lead Generation. We’re here with Vancouver Criminal Lawyer,Troy Anderson and we’re going to be talking about drug offences. How’re you today Troy?

Troy: I’m well thank you, how’re you?

Mark: Good, so are there different types of drug offences?

Troy: Well that’s a big question and the short answer is yes. There are a ton of different drug offences ranging in various degrees of severity and what I’m referring to is the punishment of course that goes with it. So, you’ve got very, very sort of low end drug offences which we frankly see very little of in British Columbia these days, the most obvious one being possession of marijuana which contrary to popular belief is still an offence in Canada. It is at least in the lower mainland very rarely enforced; the proliferation of medical marijuana dispensaries and other dispensaries have essentially resulted in what appears to me at least to be to be a factor in decriminalization at least in the lower mainland. Now you go up to possession of what we call hard drugs, so cocaine, heroin, methamphetamine, those are more serious. Then we have the offences of possession for the purpose of trafficking or the trafficking in drugs; the seriousness of those offences of course goes up with the sophistication of the operation, the amounts involved, the amount of money changing hands and then right at the top end you’ve got the importing and exporting of illegal drugs which is very, very serious; will get you often double digit sentences, double digit range, sentences measured in double digits in years in the penitentiary, that’s what I’m trying to say. So it’s pretty common to see something in the excess of ten years in prison for the importation of hard drugs. So, there’s a lot of different type of drug offences and we’ve left out the production of, for example synthetic drugs such as crystal methamphetamine or the production of marijuana.

Mark: So what is trafficking or possession for the purpose of trafficking?

Troy: Well everybody sort of seems to understand what trafficking is and it’s the sale of drugs for money. Trafficking actually has a much broader definition within the Controlled Drugs and Substances Act; it includes transportation or even turning over a drug without an expectation of profit. The classic example which is never ever applied but is technically on the books, it is the kid at the party who passes a joint to his pal, you’ve transferred a narcotic or a controlled substance from one person to another and on the very technical level you’ve committed the offence of trafficking. That’s more of an academic exercise than anything else. What we generally deal with in terms of trafficking is the actual sale of a controlled substance, so cocaine, heroin sometimes marijuana is still charged, crystal methamphetamine of course, and we see everything from the street corner transactions which we still see sometimes in the downtown east side of Vancouver to what’s called the dial a dope operation, that’s been called the pizza delivery service of drugs, wherein you have a number, you phone your guy and he delivers the drugs to your location right up to the trafficking in multiple kilograms of either cocaine or heroin or sometimes crystal methamphetamine.

The possession for the purpose of trafficking is exactly as it sounds, so you are the guy who’s got an amount of drugs in your car, on your person or in your home and it’s packaged up in such a manner that the Crown will ask the Court to infer that the drugs were intended for sale vs intended for your own personal use and so that is often the case when, or that’s often the charge when the police conduct an investigation, they conduct surveillance for example, they don’t see an actual transaction but they see enough to perhaps have an affect an arrest or perhaps get a search warrant and they rely on the circumstantial evidence. That is, the physical evidence that is found, added up together gives rise to the inference that it’s for the purposes of trafficking.

Mark: So, how do the police actually investigate these crimes?

Troy: Well the most common thing is surveillance, so the police will, if they can get a tip often from a confidential informant, sometimes a Crime Stoppers tip, they will get information connected to perhaps an individual, vehicle, a residence and they will often conduct surveillance and so they’ll sit on a house, or they’ll sit on a car. They’ve got dedicated drug squads who will follow individuals around; they will record every interaction they have. What you typically see is the police officer’s recording brief hand to hand transactions between individuals, what they hope to see is the actual exchange of drugs for money. That’s pretty tough to see because drugs are often packaged up in small amounts, cash is handed over quickly and the whole point is that nobody can see it, but what they will tend to look for is a pattern of behaviour, a series of short meets which they believe is consistent with drug trafficking, they will then either conduct a vehicle stop or arrest the individual right at the scene in the hopes of searching the vehicle or the person to find drugs, money, cell phones, what we call score sheets which is your list of who owes you for what and then what they will often hope to do is gather enough information to put together what’s called an Information to Obtain a Search Warrant to get judicial authorization to go into an individual’s house or apartment in the hopes that they can find the larger amount of drugs, money, perhaps weapons, that’s typically how they will do an investigation. It often involves the use of confidential informants, as I said surveillance, Crime Stoppers tips and all that.

Mark: So, what can I do if I’m charged with a drug offence?

Troy: Well, your strategy’s going to vary depending on what your charge was, so what we’re going to talk about today is the more serious stuff so, you’re importing/exporting, trafficking or possession for the purposes of trafficking. What I typically do when I get involved, is the first thing I want to know, is, was there a search warrant. If there is, what I want to do is get a copy of the Information to Obtain a Search Warrant and that will give me a very quick, actually often quite detailed look into the investigation up to that point. One of the reasons why I like to do that is because you will often get people arrested and then released with a court day several weeks or months down road and so you don’t have any idea what the case is going to be because of course the police are under no obligation to tell you until the matter is before the courts so if you get a copy of the Information to Obtain a Search Warrant it gets a look at the investigation very early on, you can begin planning your defence very early. If you are charged with a perhaps more serious offence, so possession for the purpose of trafficking perhaps several kilograms of hard drugs you may be held in custody for a bail hearing so then what do you do is, what I like to do is get in there as soon as possible, get on the Crown to get the disclosure and get together a plan to try to get my clients released on bail, and in order to do that properly, you have to know what the case is, so I guess what I’m trying to say is you what you want to do is get disclosure of the evidence as quickly as you can so you can begin planning your defence and what goes into that is often times, you’re asserting violations of your rights under the Charter so, for example you’re right to be free from unreasonable search and seizure, your right to be free from arbitrary detention, perhaps a violation to your right to counsel. Violations of your Charter Rights may result in a successful application to exclude the evidence that the police have gathered against you and of course if that is successful the case tends to fall apart so, how do you defend, you get on top of it early, I’d recommend getting an experienced defence counsel who does a lot of drug cases, I’d get them involved early and get on top of the disclosure so that you can start planning your defences as soon as you possibly can.

Mark: So, that wraps it up. If you get in trouble this is the guy to call, Troy Anderson, you can reach him at troyandersonlaw.com, tons of information on his website or give him a call 604-638-9188. No matter when you need him, he’ll be there. Thanks Troy.

Troy: Thank you.

Troy Anderson – Criminal Defence Lawyer, Vancouver

Hiring a criminal defence lawyer – What should I look for in hiring a criminal defence lawyer?

Mark: Hi It’s Mark Bossert Top Local Lead Generation. We’re interviewing Troy Anderson, he’s a criminal defence lawyer here in Vancouver and today we’re discussing something interesting – How do you hire a criminal defence lawyer. So Troy, what should I look for when I’m hiring a criminal defence lawyer?

Troy: The first thing I tell people to look for when you’re hiring a criminal defence lawyer is you want to make you are hiring someone who is actually a criminal defence lawyer, not a general practitioner who dabbles in the area of criminal defence. Criminal defence has it’s own particular rules of evidence, the criminal code is a huge book, it involves the Canada Evidence Act as well, the Controlled Drugs and Substances Act and the Standard of Proof is different than it would be than for example in a civil case. So the first thing I would want to know is, is the lawyer I am considering somebody who practises exclusively or at the very least regularly in the area of criminal defence.

The second thing I would ask is what experience does this lawyer have in the particular area that I’m being charged in. For example, if I’m being charged with drug trafficking, I’d want to know that lawyers experience in defending drug trafficking cases; if I’m being charged with a sexual assault, I would want to know his or her experience in dealing with sexual assault cases. That’s a great example because they have even more additional rules of evidence and different hurdles you have to get over in order to properly defend yourself in that area, so that is what I would first consider.

I’d also want to consider the budget that I have obviously. Lawyers are free to charge basically any rates they want, so you want to sit down and discuss with that person you’re considering hiring what your budget is and whether or not you can afford the person. And then finally, and I think people tend to overlook this, you want to sit down and spend the time with the lawyer to determine whether or not you’re a good fit. This is somebody you’re going to spend a lot of time with, you’re putting a very important part of your life in that lawyers hands and so you want to make sure you have a rapport, they’re somebody you trust, they’re somebody you get along with and they’re somebody you feel comfortable talking to. Those are the three major areas I tell people to consider.

Mark: So what’s the mechanism, how do I actually go about hiring a lawyer?

Troy: Well the simplest thing to do is to phone the number that you see on the bottom of your screen and you give me a call. You would speak to either me or my assistant and we set up a meeting at which point we’ll discuss you case; we discuss whatever documents you have so far, it may be a promise to appear, it may be a summons to court, you may have the entire police report. We’d go over that material and you consider the three things that we just talked about – the budget, the area of expertise and whether or not you get along with that person. At that point, a lawyer should be able to come up with a general plan about how to proceed. It’s not going to be this is how we’re going to conduct the trial and this is how we’re going to win, but should be able to give you a general idea of how the matter is likely to proceed based on, in my case, the experience that I’ve had in dealing with cases similar in the past. That’s generally how you go about doing it – keeping in mind those three areas that I mentioned at the outset.

Mark: So, when should one consider hiring a criminal defence lawyer?

Troy: If you think you might need one, the chances are you do need one. If the police are contacting you that’s a very good indication that you should be talking to a criminal defence lawyer. If you’re sitting in jail, awaiting a bail hearing you need to contact a criminal defence lawyer. If you get a summons in the mail, if you have the police knocking on your door in the middle of the night with a search warrant, those are all very good indications you need a criminal defence lawyer. Basically any time the police want to talk to you, it’s a good idea to get some legal advice.

Mark: What can I expect my criminal defence lawyer to do?

Troy: Well very briefly, it’s going to depend on the circumstances of your case. But some of the things that are common to every case – you’re going to sit down with a lawyer and you’re going to discuss what you are actually charged with, so the specifics of your own, personal situation. The lawyer is then going to then go over the generalities of how criminal cases go. So for example, we may discuss how to proceed through a trial, what kinds of trials are available to you; it may be a judge and jury trial, it may be a provincial court trial. We’ll probably discuss a little bit about the availability of something like a plea bargain. We will talk about getting access to all the police reports of the evidence that the Crown is going to attempt to use against you. We’ll talk about all the various lead ups to what occurs in court. Then what we’re going to do it talk about what can happen in court and as you proceed through the case your lawyer should be in regular contact with you, so you have an idea about what’s going on with your case. So for example, if you’re showing up for a first appearance, if I was representing you, I would attend on your behalf, hopefully you’ve got the entirety of the police report available to pick up. I would pick that up, I’d make a copy and then the client and I would sit down and go over the material. I would then give the client a copy of it and he or she would take some time to review it on their own so they can tell me what they recall about what the events that were referred to in the police report. So you will get a statement from somebody that may allege an assault, for example, and my client may say, ‘Well it was nothing like that and here is everything that is wrong with this persons statement.’ We then meet again and we talk about what is wrong or misleading in the police report and we begin to plot trial strategy. Those are all things your lawyer will be doing for you, those are the less obvious things. The obvious things are representing you in court, so if you are on bail, making sure your bail conditions are reasonable, if necessary applying to amend your bail so they are conditions you can live with. Obviously getting you out on bail may be something your lawyer may need to do. having discussions with the Crown, demanding disclosure of everything you’re entitled to – so, witness statements, forensic reports for example, photographs, videos, any maps or other documents the Crown may be relying upon – and then obviously preparing for the trial. That involves not only the legal research into the area that you’re going to be arguing about, but as well making sure that the client is ready for trial. Part of it is making sure the client knows what to expect, it can be something as simple as where do I stand once the case is called, what if the judge talks to me – do I have to say anything, how should I dress for court. Once you get into court, what I like to do is explain to the client what I foresee happening. So the Crown for example, may call witness X, witness Y and then witness Z, then we’re going to hear from a police officer, then we’re going to hear from an expert witness and then the Crown will close their case and that’s when we get our chance to present the defence. So those are the more obvious things -at it’s heart you’re paying a lawyer to look after your interests throughout the entire proceeding – that is the essence of it.

Mark: Pretty straight forward, so Troy, one thing that occurred to me to ask you about is what is your experience as a criminal defence lawyer?

Troy: I’ve been defending people in the area of criminal defence for almost twenty years now. I began once I finished law school in May of 1994 and been going pretty much solid ever since. I was called to the bar in September 1995 here in Vancouver, BC and have been practising criminal defence here ever since. Now, that is not to say it’s been exclusively criminal defence, I’m one of a group of people that gets approached from time to time to act as what they call an Ad Hoc Prosecutor. So I have all that experience going at criminal law from the other side that is building up a case to attempt to prove something beyond a reasonable doubt, so I have the experience of going at it from that end.

Mark: So I imagine that’s probably a pretty nice advantage really having gone through, how to build a case, how to be able to defend against a well built or not well build case.

Troy: It gives you a great deal of insight. You know the old saying ‘If you want to know how to tear something down it helps if you know how it was built in the first place.’ So yes, I think it does help you when you’ve had the experience knowing what you’d need to prove, it helps you spot the areas that’s perhaps the Crown has overlooked – so it may give you an advantage in tearing down the case, yes that’s true.

Mark: Alright, I think that’s covered it for this week. We’ve been speaking with Troy Anderson. He’s a criminal defence lawyer in Vancouver, BC. You can reach him at troyandersonlaw.com – he’s got a lot of articles and information there about case results etc or you could just call him 604-638-9188. Thanks a lot Troy, we’ll see you next week.

Troy: Thank you Mark

Criminal Trials – What do you need to Know?

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Mark: Hi, it’s Mark Bossert from Top Local Lead Generation. We’re here for our weekly talk with Criminal Defence Lawyer Troy Anderson of Vancouver, BC. We’re going to be talking about criminal trials today and good afternoon Troy.

Troy: Good afternoon.

Mark: So, I guess the first question is an obvious one and probably one you get quite a bit is ‘Why can’t I just represent myself?’

Troy: The Criminal Trial is something that is conducted by professionals and by professionals I am referring to police investigators and Crown Prosecutors and so you are dealing with your adversaries who are operating within their field of expertise so for example on a charge if you’re charged with a minor theft or perhaps an assault, that maybe something that a person with reasonable intelligence can pull together because there aren’t a lot of technical issues in there but what you have to keep in mind is that if you are thinking about representing yourself you probably know very little about the rules of evidence, you probably know very little about the procedures that are going to be followed, you probably don’t even know what you’re supposed to call the judge depending upon which court you’re in; so it makes it very, very difficult. You’re starting at a profound disadvantage.

If you’re dealing with something even a little more complicated like perhaps driving offences and certainly sexual offences there are specific rules of evidence, there’s specific evidentiary shortcuts that the Crown will take and the trial may come down to the proper cross examination of witnesses even on a simple assault case or a simple sex case and cross examination is not something you can just pick up overnight no matter how well you think you can argue with your kids or your spouse or your buddy in the bar; it is a skill that is learned over years.

So, it is possible to represent yourself in some circumstances; it’s generally not something I’d recommend, certainly not for anything that’s more serious. For example in a driving offence, if you are relying upon your driving privileges to get to and from work, you’ve got far too much at stake to do that on your own. My example is I change a light bulb in my own house; I don’t rewire the house because I prefer not to burn it down. There’s certain small things I know I can do but there’s a point where you need to get a professional involved and I think if you are in a criminal trial, at risk of a criminal conviction, I think it’s time to get somebody professional in. So yes, you can represent yourself; it’s generally not a good idea.

Mark: Right, so what will a Criminal Defence Lawyer do for me?

Troy: Well, the first thing a Criminal Defence Lawyer is going to do is review the evidence. So you review the evidence to look at the actual charge you’re facing, what if anything the Crown has to back up the allegations and so if you’re a regular guy charged with an offence and you’re looking at a police report, you will understand probably some of it, you probably won’t understand all of it so what your Criminal Defence Lawyer does is reviewing the material knowing what to look for, knowing where the holes are likely to be and finding the holes and again, we’ve talked about this before, ideally your Criminal Defence Lawyer finds a flaw in the case that the Crown can’t fix and then you have a very firm step. The second step is preparing to cross examine and challenge the Crown witnesses and again as we discussed that is a skill that is developed over years. So how to approach a witness, you learn when you attack a witness, you learn when to draw a witness out more slowly so you can get the answers that you need and while on television that takes two or three minutes before the commercial break, in a real trial that can take hours or days and you need to know how to do it, you’re actually, it’s a chess game that you’re playing; sometimes second by second with a witness while they’re in the witness box particularly if you’re dealing with a professional witness such as a police officer or some other expert witness. So, again that’s the early part of what your defence lawyer will do.

Your defence lawyer will assist you in gathering the evidence to present your defence, so of course before you get there your lawyer will advise what the defences may or may not be, talk to you about what evidence we can expect to call and then assist you in gathering that evidence. So it may be putting together phone records, something like that to actually provide tangible evidence to the court to corroborate the point that you’re trying to make. So for example if you say that ‘I was nowhere near the crime scene, I was actually in another city” then we could perhaps get phone records to establish that your cell phone was at least in that city and then look at the content of some of your text messages to corroborate that you were the one using the cell phone at that time. So your lawyer can help you do that.

Your lawyer can also help you remain objective and this comes into play particularly in areas where someone is charged with a sexual assault, particularly a child or if you’re charged with a domestic assault where you’ve got a family dynamic in there that is clouding over everywhere. So for example, if you’re charged with sexual assault, it’s a very, very, very serious charge. It’s one of the worst things I can think of, it carries tremendous stigma and a lot of people obviously get very, very upset at even the allegation and what you need your lawyer to do is to get past all of the outrage, get past all the personal animosity and objectively look at the evidence to find a way out of the situation, not simply railing away against the injustice of it all which is something we can do in the office but that’s not what you do at a trial. A trial is a calm, dispassionate approach to defeating the Crown’s case. So that’s one of the most important things your lawyer can do and then obviously your lawyer conducts the trial. So does the opening statement, cross examines the Crown witnesses, presents the defence case, knows the legal arguments to make and makes them properly and then of course does the closing to the judge and so that’s obviously what your lawyer does during the criminal trial but you have to keep in mind the show that you see in the court room is really the tip of the iceberg. There’s a ton of work that goes in before that and in order to do the job in the court room properly, you have to be prepared and having a lawyer do that for you obviously, someone like myself would have close to twenty years of experience and knowledge in doing just that and so it gets done properly, you hope it gets done efficiently and you hope to come out of it o.k.

Mark: So, I guess one of the questions is should I wait until I have a trial date to hire a lawyer?

Troy: Well, you can. One of the problems with that is that once the trial date is set, at least in British Columbia, the trial coordinators or the judicial case managers will tell you if you set a trial date without a lawyer, if you choose to hire a lawyer at the last minute, you better find someone who’s available on that date because they’re not very likely to give you an adjournment. That’s one reason why you probably want to hire a lawyer early. The second main reason goes into what we just discussed which is the work that goes into it in the lead up to the trial, so if I am facing a criminal charge I would personally want to get my lawyer involved as quickly as possible to make sure that I can attack the case from the very beginning as so an example I gave earlier, if there is a fundamental flaw in the Crown’s case and we can find that early, and we find a Crown prosecutor who I know and trust for example, I could point that out to them knowing they will do what they’re required to do which is drop the charge. If that’s not possible then we can begin plotting the defence strategy, we begin gathering defence evidence so that we are ready to go when the trial date eventually does come. So yes, you can hire somebody at the last minute. It’s not a good idea; it’s a much better idea to hire somebody early so the work can get done in the lead up to the trial.