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Criminal Negligence and Dangerous Operation of Vessels

Jul 2

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Serious regulation of various criminal issues while controlling a boat can seem not very serious to most of the people, still it is very important to remember that a boat accident can lead to very serious consequences and in this article we will show you some examples. But at first let us define the Criminal Negligence in the Common Law tradition. In the criminal law, Criminal Negligence is one of the three general classes of mens rea (Latin for “guilty mind”) element required to constitute a conventional as opposed to strict liability offense. This term is defined as: careless, inattentive, neglectful, willfully blind, or in the case of gross negligence what would have been reckless in any other defendant. Negligence itself shows the least level of culpability, intention being the most serious and recklessness of intermediate seriousness, overlapping with gross negligence. Criminal negligence becomes “gross” when the failure to foresee involves a “wanton disregard for human life”. The degree of culpability is usually determined by applying a reasonable person standard. This reasonable person is supposed to be appropriately informed, capable, aware of the law, and fair-minded.

The Canadian Criminal Code defines two important vessel-related violations the already mentioned criminal negligence and dangerous operation of a vessel. As for the first violation it specifies that a person is negligence when he or she in doing anything, or in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. Dangerous operation of a vessel is defined as operating a vessel in a manner that is dangerous to the public, with regard to all the circumstances like the nature and condition of those waters or sea and the use that at the time is or might reasonably be expected to be made of those waters or sea. A very important part of the Dangerous Operation law is the “Marked Departure” from standard of care. This marked departure is usually defined in every specific case basing on the situation (and on what a reasonable person would do in this situation) and it basically is the difference between negligence and dangerous operation. For example if you when docking your boat with minor speed lost your focus and slightly rammed into a neighboring boat it is negligence, but if you attempted to impress your girl with a high-speed maneuver and rammed into a boat you are on the way to dangerous operation of vessel. Also this type of offence must not always have a crash as a basis for a lawsuit, in some cases people were charged even when the collision was avoided. As for the Criminal Negligence it also has the so called wanton and reckless disregard for the safety of others. Usually it is defined by the court, because in some cases people actually believed that their actions were not dangerous to others. So as you see in violations regarding vessels, most important factors vary from situation to situation.

For more information regarding Boating accident lawyers, London Lawyers, Vancouver criminal lawyers and Attorney please visit: www.lawyerahead.ca

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Plea Bargain

Jul 2

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Plea Bargain (also called plea agreement, plea deal or copping a plea) is an agreement, in a criminal case, between the prosecutor and the defendant. The defendant is given the opportunity to plead guilty usually for a part of his charges with a recommendation of a lighter sentence. This agreement can be made at almost any point of a criminal case, before the trial. The majority of criminal cases (about 90% of all criminal convictions) are solved through a Plea Bargain. Today when the courts are overloaded and the jails are overcrowded it is a good solution that allows saving time and the resources of the court. Usually this agreement is offered by the court that wants to “process out” the criminals that are not likely to spent much time in jail in case of a guilty verdict. Even the presence of a judge is not required for this agreement. The prosecutors are also interested in a Plea Bargain, because in most cases there is no guarantee that they will win the case in the end. If they persuade the defendant to plea guilty through this agreement, they will definitely have a successful case and guaranteed conviction even without any trial. Also in some cases a Plea Bargain can be used against co-defendants. The defendants are also interested in a possibility to plea guilty for lesser charges, if the case has some serious evidence. And it is also in the interest of an attorney to get the least possible punishment for his or her client if it is nearly impossible to win the case. So if we look at Plea Bargain in general it is a solution that is suitable for almost all the sides in a criminal case.

Plea bargaining usually involves negotiations between the sides in a criminal case in three following areas:

Charge Bargaining
The easiest was to explain is an example. If a person is charged with a first-degree murder a plea bargain will lower these charges to manslaughter. This works for all the types of charges but always heavily depends on the case.

Sentence Bargaining
In this area a lighter sentence is provided for a person that pleads guilty. It helps the court and the prosecutors to avoid trial and the defendant to a smaller sentence.

Fact Bargaining
The third area is facts. It is an admission to certain facts in exchange for an agreement not to introduce certain other facts into evidence.

Plea Bargains are often criticized because it is a way for criminals to avoid the most serious punishment, but in reality in every case this agreement is discussed and there are always a number of factors that influence the possibility of reaching a Plea Bargain. It can be based on the seriousness of the alleged crime, the strength of the evidence in the case, and the prospects of a guilty verdict at trial. So despite all the negative opinions this agreement is still one of the best possible instruments of the law today.

For more information regarding Ottawa criminal lawyers, criminal lawyers, Hamilton lawyers and Attorney please visit: www.lawyerahead.ca

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Stages of a Criminal Case part.2

Jun 30

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4. Arraignment
After the arrest, booking and bail stages comes arraignment, the first stage that actually happens in a courtroom. At this stage the person is already called a defendant and the judge reads him or her charges. Some of the most important parts are also solved this stage. The defendant is asked if he or she has an attorney, if not the courts will appoint a state attorney. Such important things as the bail amount and dates of all future proceedings such as the preliminary hearing, pre-trial motions, and trial are decided at the arraignment stage.

One of the most important in the whole process happens at this stage. After reading the charges the defendant is asked if he or she pleads as guilty, not guilty or no contest. Useless to say that the answer of the defendant has a huge impact on all the following stages. At this stage the attorneys also receive the information on the evidence, so they can prepare the defense arguments for the trial.

5. Plea Bargains
The arrangement is followed by the plea bargain stage. At this stage the defendant has the possibility to plead guilty to one or more charges) in exchange for a lesser sentence or even for some charges to be dropped. Today more that 90% of all the sentences come from plea bargains. The laws are becoming more detailed and complicated every year and the number of trials increases, so a plea bargain is an effective solution for the overloaded courts. This solution saves month or even years of work, but is widely disputed despite its effectiveness.

6. Preliminary Hearing
The preliminary hearing is basically a trial before trial stage except for the fact that the judge doesn’t decide if the defendant is guilty or innocent. Preliminary hearing is a kind of rehearsal before the trial.

The main goal at this stage is to prove if the case is ready to go to trial. Basing on probable cause the judge is checking the gathered evidence and defining if it is enough to bring the defendant before trial. The main stand on this stage occurs between the prosecutor and the attorney, while the first one tries to prove that there is enough evidence for a trial, an attorney usually tries to convince the judge that the prosecutor’s case is not strong enough.

7. Pre-Trial Motions
Before the main stage of a Criminal Case (the trial) there is the so called pre-trial motions stage. At this stage the prosecutor, the attorney and the judge are discussing the maid details related to the upcoming trial. As was already mentioned the number of trials (despite the fact that lot of cases are solved by a plea bargain) increases every year so a trial must be a well prepared process.

Practically these three sides discuss everything related to the evidence, witnesses and boundaries for trial. At this stage the side can also dismiss the case altogether if they found a good alternative solution.

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Stages of a Criminal Case part.1

Jun 30

Posted by john.matthew in Business | No Comments

Naturally because the law and related topics are very rich in details, some of are articles are sometimes lacking these details so this week we will present some large and detailed articles for you and to make the reading easier we will split them in parts. The first one will describe all the stages of a Criminal Case.

0. Crime
The first thing that can be called stage zero is the violation itself. But naturally it can’t be regulated by any rules and lead to the first law related phase – Arrest.

1. Arrest
An arrest is a procedure when a suspected person is taken into police custody. At all the stages of the arrest the police have to protect the constitutional rights of the arrested citizen. Also the charges or the warrant need to be presented to the arrested person within a short period of time (usually 48 hours). The arrest itself can be based on two causes, the first – a suspicion of a police officer and second a warrant. In first case a police officer can arrest a person if he witnesses a crime, or if he has enough facts and circumstances that a person has committed or is about to commit crime, for example if he sees someone in a mask with a gun running away from a robbed bank, this is labeled as Probable Cause. In case of a warrant it has to be signed by a judge and must be based on facts that prove a crime or give enough bases to put the person under suspicion.

The most important thing at this stage is to remember that a person can always dispute the cause for an arrest, the charges or the evidence, but it is best to have these things disputed by an attorney and not during the procedure itself.

2. Booking
After the arrest the next stage is called booking. This is a very important moment because the arrested person has the possibility to contact his or her attorney. Of course if the violation was small the arrested person will most probably fill in some release papers and state that he will appear in court for a decision.

During booking the police usually obtain the data required for the whole case. In the movies we usually see mug shots and fingerprints, but in real life the officers write down the suspects’ name, date of birth, physical characteristics, information about the crime, and search for his criminal background. After that the person gives up any personal property like keys or purse and is placed into a cell. Usually if the crime isn’t very serious the suspect can be bailed out.

3. Bail and Own Recognizance Release
After the suspect is booked he or she can be released through bail. A bail is a sum of money that the suspected person leaves to the court promising that he or she will appear in court when he is ordered to do so. If the person appears in the court, the court refunds the bail sum, if not, the court keeps the sum and issues another warrant for the persons’ arrest. After bail violation the suspect will have no more possibilities to be bailed out.

If the seriousness of the crime or the criminal history of the suspect gives the court some trust in the booked person he or she can be released under a free bail called the Own Recognizance Release. It varies from country to country, but everywhere this type of release requires strong arguments and has lot of limitations.

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