Case Study: Absolute Discharge – Public Mischief
During family separations emotions run high and parties are often put in difficult situations. When a family member of Ms. W.’s approached her home to deliver court documents regarding the separation, she feared for the safety of her and her children and phoned the police. When the police spoke with the individual who had dropped off the documents they explained that they did not have violent intentions and were there to deliver documents only.
Despite not knowing this was the reason for the visit, and having legitimate fears of the individual, Ms. W. was charged with public mischief for falsely phoning the police. This only served to increase her fears, as she now worried this incident could be used against her in court regarding the separation. Ms. W. contacted Aitken Robertson, and Philip Stiles set her at ease and began building her defence.
Ms. W. explained to us that she had legitimate fears of the individual who knocked on her door, and that prompted her to phone the police. She also expressed concern that if she had a criminal record it could impact her career plans; a common concern for those facing a first offence. Our goal was to avoid Ms. W. gaining a criminal record and facing sanctions for an offence she had no intent to commit.
From the beginning, the Crown was difficult about negotiating a deal. Ms. W.’s lack of a criminal record and for such a minor offence would normally make the Crown at least consider withdrawing the charge for a peace bond. But the Crown Attorney had interacted with Ms. W. before and had a negative view of her. This bias made the Crown unwilling to provide leniency for a first offence.
Phil met with the Crown to discuss possible outcomes and the Crown made statements that implied he was unwilling to negotiate due to his experience with Ms. W. Since the Crown was unwilling to act with a blank slate, Phil scheduled a Judicial Pre-Trial to have a judge provide input on the matter. By explaining before a judge that Ms. W. had no record and that the Crown was acting out of bias it would be possible to secure a favourable outcome without the Crown’s cooperation.
At the Judicial Pre-Trial the judge agreed with Phil’s position and agreed to an absolute discharge. Ms. W. would face no criminal sanctions, such as fines or prison time. While she would have a criminal record showing the offence, it would be automatically removed from her record after one year. The Crown did not agree with the judge’s position, but this was irrelevant. Ms. W. paid a small “Victims of Crime Surcharge” and was able to put the incident behind her.