Discretion<

Discretion guidelines

For reference

Discretion guidelines training guide

Summary sheet: Discretion Guidelines

Discretion guidelines for specific areas of the law

Criminal Law

  Approved discretion guidelines

Results obtained

  • All charges withdrawn as a result of lawyer’s actions
  • Discharge of all charges at preliminary hearing as a result of lawyer’s actions
  • Acquittal of all charges at trial as a result of lawyer’s actions
  • Sentence significantly reduced as a result of lawyer’s actions
  • Material contribution to an outcome that is precedent-setting and that affects the administration of justice in favour of the defendant

Complexity of the matter

  • Novel legal issue – e.g., attempt at aggravated assault by HIV transmission – or unusual factual situation
  • Rare motion – e.g., third-party records, recusal motion, mistrial
  • Forensic/expert evidence
  • Client’s special needs – e.g., mental illness (unique proceedings)
  • Characteristics of witness – e.g., child witness (testimonial capacity)

Other relevant factors

  • Defence facing exceptional Crown/prosecutorial resources
  • Disclosure
  • Extended sentencing hearing
  • Timeliness/reduction in appearances, i.e., Justice on Target criteria
  • High-profile case

Family Law (Support, Custody, Access)

  Approved discretion guidelines

Results obtained

  • Motion for interim spousal support – award at high end of spousal support guidelines
  • Motion for interim child support – retroactive to date of application; support ordered where other party stands in loco parentis
  • Access, custody – custodian successful in obtaining relocation and/or change in de facto custody due to parental alienation
  • Change in interim custody
  • Contested no access ruling

Complexity of the matter

  • Client’s special needs – e.g., mental health
  • Self-employed, imputing income
  • Sexual or serious physical abuse allegations – e.g., criminal charges
  • Hague Convention matters

Other relevant factors

  • Disclosure
  • Forensic/expert evidence
  • Multiple children/ parents/parties
  • Well-funded litigant
  • Timeliness/reduction in appearances through mediated/negotiated settlement

Family Law (Child, Youth and Family Service Act - CYFSA)

  Approved discretion guidelines

Results obtained

  • Protection application – child deemed not in need of protection
  • Motion – care and custody – child deemed not in need of protection
  • Motion – summary judgment on extended society care application – successfully defended and/or costs awarded
  • Status review – resolution from extended society care to supervision order

Complexity of the matter

  • Child or parent special needs – e.g., mental illness, addiction
  • Sexual or serious physical abuse allegations – e.g., criminal charges
  • Aboriginal factors, band issues

Other relevant factors

  • Disclosure
  • Forensic/expert evidence
  • Multiple children/ parents/parties
  • Well-funded litigant
  • Timeliness/reduction in appearances through mediated/negotiated settlement

Refugee Law

  Approved discretion guidelines

Results obtained

  • Successful refugee claim – Immigration and Refugee Board success rate of 20 per cent or less

Complexity of the matter

  • Novel claims - e.g., transgender
  • Exclusion
  • Multiple countries of citizenship
  • Ministerial Intervention

Other relevant factors

  • Minor
  • Domestic violence
  • Mental illness
  • Illiteracy
  • Expert witness
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