Case Study: Withdrawal – Mischief Over $5,000
On Friday February 1, 2019 in the morning hours, it was alleged that Mr. K. walked into a hair salon, held a hammer in his hand and proceeded to walk up to every mirror in the shop and swung the hammer, striking the mirrors and causing them to crack and shatter. It was further alleged that Mr. K. continued his way around the salon throwing and smashing various pieces of equipment and lights.
The shop owners stood back and called police while also recording Mr. K. with their cell phone. Officers arrived on scene, reviewed the cell phone footage and recorded a written statement from the shop owner. At this time, Mr. K., who was still wearing the same clothes as seen in the video, entered back into the store with officers present. Mr. K. was then arrested, read his rights to counsel and transported to the police station. Photos of the scene and the cell phone footage were added to the case file. The estimated damages allegedly caused by Mr. K. totalled over $5,000.00 Canadian.
The ultimate goal was to settle this matter outside of the formal court process. In other words, to have the charges be withdrawn or to be resolved through alternative resolution such as the Direct Accountability Program. This would help avoid a criminal record for Mr. K. Our role was to be creative with various resolution options to ensure that Mr. K. was not disproportionately penalized for the incident.
If Mr. K. were to be convicted of mischief over $5,000 proceeded summarily (less serious designation), he was facing penalties of a maximum term of imprisonment of six months or a $5,000 fine. If the matter was proceeded by indictment (more serious designation), then Mr. K. could have faced a term of imprisonment of up to ten years. As you can see, these are very severe consequences for the alleged offence in this case.
The strategy here was to provide context to the events that unfolded. It was important that the Crown was well informed of the background of the relationship as between Mr. K. and Mr. L. The synopsis as captured by the police was very one sided. The goal was to demonstrate to the Crown that both parties had a role to play in the incident that occurred and that it would be unfair and unjustifiable for Mr. K. to bear the burden of the entire responsibility. We would explain to the Crown the long-standing history of the relationship between the parties involved, the provocation caused by Mr. L. and clarify the misleading information provided by Mr. L. with respect to our client, Mr. K.
The result in this case was the best-case scenario – the charges were withdrawn; no criminal record, in fact no record of the incident at all. Mr. K. was thrilled with the result. In exchange for the withdrawal, Mr. K. did pay a restitution amount of $1,000 for damages that were quoted to be over $7,000. Ms. Al-Zaman correctly pointed out that Mr. K. was not legally required to pay the entire restitution amount as the complainant was insured and already compensated. She noted that the complainant couldn’t be made whole (compensated) twice. The Crown agreed with this perspective and offered that Mr. K. pay only the deductible for which Mr. L. was out of pocket for. Mr. K. has put the matter behind him and is moving on with his life.