You can transfer an outstanding criminal charge from another city or province to Hamilton, but only if you intend to plead guilty. This process, known as “waiving the charges,” requires the formal consent of the Crown Attorney in both the originating jurisdiction and in Hamilton.
Getting charged with a criminal offence is a daunting experience, but it becomes a logistical nightmare if the incident happened far from home. If you reside in Hamilton but were arrested while travelling in another province or a distant Ontario city, travelling back and forth for every court appearance can drain your time and finances.
Fortunately, the Canadian Criminal Code offers a solution under Section 478. You can request to transfer your case to your home jurisdiction of Hamilton. However, this legal mechanism is strictly for individuals who wish to take responsibility for the offence. This guide outlines how to “waive” your charges into Hamilton.
Step-by-Step Process for Waiving Charges to Hamilton
Transferring a criminal case involves coordination between two different court systems and two different prosecutors. A local Hamilton criminal defence lawyer can manage this communication on your behalf.
Step 1: Make the Decision to Plead Guilty
The most critical rule of transferring a charge is that you cannot do it to run a trial. By requesting a transfer to Hamilton, you are making a binding commitment to plead guilty. If you want to fight the charges, the trial must take place in the city where the offence allegedly occurred.
Step 2: Obtain Consent from the Originating Crown
Your lawyer must contact the Crown Attorney’s Office in the city where you were charged. They will submit a formal request to waive the charges. The originating Crown will review your file to ensure the offence is not so uniquely severe or localized that it must be handled in their specific community.
Step 3: Transfer to the Hamilton Crown Attorney
Once the originating Crown agrees, the physical and digital case files are securely transferred to the Hamilton Crown Attorney’s Office. A Hamilton prosecutor must also consent to receive the file and handle the sentencing phase.
Step 4: Attend the Hamilton Courthouse for Sentencing
After the transfer is complete, you will be given a new court date at the John Sopinka Courthouse in Hamilton. Here, you will enter your formal guilty plea before a local judge, who will review the facts and hand down your sentence.
Waiving Charges vs. Running a Trial in Canada
Deciding whether to transfer your case requires weighing the convenience of a local plea against your right to defend yourself.
| Feature | Waiving Charges to Hamilton | Keeping Charges in Originating City |
|---|---|---|
| Plea Requirement | Mandatory guilty plea to all or some of the agreed-upon charges. | You maintain the right to plead not guilty and fight the case. |
| Travel Requirements | None. All final proceedings happen locally at the Hamilton courthouse. | You or your lawyer must travel to the originating city for trial and appearances. |
| Sentence Location | Any probation, counselling, or community service is easily set up through Hamilton agencies. | Inter-provincial transfers of probation orders can be complicated to set up. |
How Much Does it Cost in Hamilton?
Transferring the charges can actually save you money on travel, but there are still legal costs involved.
- Court Administrative Fees: The actual process of transferring the paperwork between Crown offices is free of charge under the Canadian justice system.
- Lawyer Fees: Hiring a Hamilton lawyer to negotiate the transfer, review the disclosure, and represent you at the sentencing hearing typically costs between $1,500 and $4,000 CAD, depending on the complexity of the indictable offence or summary conviction.
- Fines and Victim Surcharge: If your sentence includes a monetary fine, you will also be required to pay a mandatory federal Victim Surcharge (usually 30% of the fine).
How Long Does the Process Take?
Transferring a file across jurisdictions is an administrative process that takes time. If you are transferring charges from a nearby city like Toronto or Niagara, it may take 3 to 6 weeks. If you are waiving charges from out of province, such as from British Columbia or Alberta, the bureaucratic transfer between different provincial court systems can easily take 2 to 3 months before your first Hamilton court date is scheduled.
Frequently Asked Questions (FAQ)
Can I transfer a case to Hamilton and then change my mind?
If you transfer a charge to Hamilton and then refuse to plead guilty before the judge, the Hamilton court loses jurisdiction. The judge will cancel the transfer, and your case will be sent all the way back to the originating city for trial.
Does this apply to provincial speeding tickets?
No. Section 478 of the Criminal Code only applies to criminal offences. Provincial traffic tickets (like speeding) fall under the Highway Traffic Act and generally must be dealt with in the municipal jurisdiction where the ticket was issued.
Will waiving my charges result in a criminal record?
Because waiving charges requires a guilty plea, it generally results in a criminal record. However, your Hamilton lawyer may still negotiate a conditional or absolute discharge during sentencing, which would spare you a permanent conviction.
Can I waive charges if there are multiple co-accused?
If you were charged alongside other people, the Crown might refuse your request to transfer the case. Prosecutors usually prefer to keep co-accused individuals together in the same jurisdiction to ensure consistency in the legal proceedings.
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