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Charges Related to Home Invasion and Potential Defences

If you have been charged with home invasion, we are here to help. This blog will give you an idea of how hiring a criminal defence lawyer from Aitken Robertson can make the difference in your case.

Home invasion can be defined as a break and enter of occupied residential premises with forced confinement, assault or a battery of occupants. This is considered to be a serious criminal offence in Canada. Accordingly, it is critical that you see the legal services of a competent and capable criminal defence lawyer. Without putting forth a legal defence, the accused will be in a compromising position as he or she does not know the law and would not be in a position to advance one or more defences.

Defences For Home Invasion Related Charges

  • Defence of Necessity
  • Defence of Mental Disorder
  • Defence of Duress
  • Defence of Accident
  • Colour of Right
  • Mistake of Fact and Law
  • Provocation
  • Charter Breaches
  • Procedural Deficiency
  • Abuse of Process
  • Entrapment
  • Alibi
  • Reasonable Explanation
  • Prank
  • Prosecutorial Misconduct
  • Violation of right to full disclosure
  • Intoxication
  • Breaches to Right to a Fair Trial
  • Breaches to Right to Counsel

Whether or not one or a combination of the above defences are applicable to you will depend on the facts of your case. Once your lawyer understands the context surrounding the circumstances surrounding your offence, he or she is able to explain to you which defence may apply and how.

In addition to legal defences, a criminal defence lawyer will also point out the mitigating factors in your case to the Crown prosecutor assigned to your matter. In order to better understand the relevance and importance of mitigating factors during meaningful discussion with the Crown, we offer you a bit of background with respect to the court’s viewpoint on sentencing principles that underlie the Canadian justice system.

Court’s Perspective

If an accused has been convicted of the criminal offence, then the court will make a decision as to sentence taking into account what is referred to as “Sentencing Principles”. Specifically, the fundamental purpose of sentencing for courts is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. Section 718 of the Criminal Code of Canada requires courts to structure sentences that attain that purpose by addressing certain objectives. These include denunciation, specific and general deterrence, rehabilitation, separation of offenders from society to protect the public where necessary, reparation to victims or the community and promotion of responsibility of offenders and acknowledgement of harm.

Courts say that a sentence must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The court will gauge at what end of the spectrum the offence falls under to inform the sentencing. Here the offence is at the extremely grave end of the spectrum of offences.

Rehabilitation is always an important objective of sentencing, particularly in cases where offenders are relatively young and, if given the benefit of resources, may turn their lives around. That brings us to the mitigating factors, which are points your lawyer will raise to the court in the effort to reduce the sentence as much as possible. Our role is to advocate on your behalf. We have the experience necessary to clearly convey the mitigating factors in your case, which we will help you identify and support with relevant evidentiary documentation.

Some of the mitigating factors are as follows and is not limited to the following:

Mitigating Factors Considered with Home Invasion Charges

  • Age (at time of offence)
  • Childhood
  • Abuse
  • Necessity (to seek shelter or food)
  • Addictions
  • Mental Heath
  • Community
  • Ethnicity (i.e.: Indigenous)
  • Education
  • Medical Condition
  • Guilty Plea
  • Absence of Aggravating Factors
  • No Harm Caused
  • No Robbery
  • No Occupancy at Time of Offence
  • No Weapons used at Time of Offence
  • No Criminal Record
  • Reference Letters
  • Employment
  • Volunteer Work
  • Community Service

Notwithstanding the above mitigating factors, the courts note that the sentencing objectives of denunciation, deterrence and separation of the offender from society to protect the public, must be paramount in terms of sentencing principles to be considered. A sentence of imprisonment for example, the courts find will hopefully deter members of the public from engaging in similar criminal behaviour. A strong denunciation is sent to demonstrate that the courts will not tolerate such acts in the community.

The Aitken Robertson Team

If you or someone you know is facing a related criminal charge, then give our office a call for some much needed initial legal advice. It is important that you understand the jeopardy you are facing. With these types of offences, a very substantial sentence of imprisonment is a very real possibility. This is not a straightforward area of law. This blog has only provided a limited scope of the offence and potential defences. Each case is specific and unique in its own right. Once we are able to assess the facts of your case, we can explain what defences we can advance on your behalf. Our lawyers are passionate about their work and protecting the rights of the accused. Let us protect you and help you fight the charges.

 

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