Blog Archives - Shukairy Law - Criminal Defense Attorney

R. v. Kahsai, 2023 SCC 20

Wed, 09 Aug 2023 13:59:39 GMT

The Supreme Court of Canada released on July 28th, 2023 its decision in R. v. Kahsai, 2023 SCC 20.

In this decision the Court clarifies the role of amicus in criminal proceedings.

Maya Shukairy was one of the lawyers representing the intervener the Empowerment Council.

Here is a link to the case:

https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20016/index.do

Social Media And Criminal Law

Tue, 15 Nov 2022 18:43:00 GMT

Social media is an inherently expressive outlet that encourages users to routinely share personal information. Despite its many benefits, negligent online behaviour could be used as incriminating evidence in a legal matter. Information posted online becomes accessible to the public, and Canadian Courts have upheld relevant social media data as admissible evidence in criminal court. If you are facing a criminal charge, it is crucial to understand how your social media habits may compromise your legal proceeding.

Using Social Media Posts As Evidence

An active online presence holds the capacity to extensively document its user, making it a potentially significant influence on the criminal outcome of an accused. The law concerning social media data as evidence is constantly evolving; however, online data is admissible in court under the Canada Evidence Act as an “electronic document”. s. 31.8 of the Canada Evidence Act defines “electronic documents” as:

Use Of Electronic Data In Court

“data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data.”

This definition encompasses most electronic communication and social media websites that are utilized today. However, the use of electronic data in court also depends on the accompanied expectation of privacy.

Text Messages & Privacy

The extent of privacy one has in the content of their text messages has recently been modified. Police officers could previously read the text messages of an accused in the event of an arrest without the attainment of a warrant on the account that one’s right to privacy is not reasonably expected once the message is sent to another person. However, in the recent case of R . v. Marakah , the Supreme Court determined that text messages may hold a reasonable expectation of privacy even after they have been sent. Examining their content without a warrant may therefore violate s.8 of the Charter, which protects the right against unreasonable search and seizure.

Despite this outcome, the court noted that the assumption of privacy varies depending on the manner of communication, and this reasonable expectation of privacy does not extend to social media postings.

Exercising Caution

It is imperative to realize the irreversibility of publishing information online, as anyone that encounters your posts can permanently record their contents.

Considering the consequences reckless online habits can have on your criminal proceeding, consider taking the following precautions:

Ensure the highest level of privacy is set for your social media profiles.
Do not post anything online that may suggest the commitment of a criminal action.
Do not carelessly post photos and personal information on social media. Think carefully about the content you publish.
Do not discuss the content of your legal proceeding on any form of social media.

POSTING AN INTIMATE IMAGE OF A PERSON WITHOUT CONSENT

Social media and technology facilitate communication and access to information. It is easy through these media to connect with people all over the world, know what is happening in far and remote places and follow the news instantaneously. This side of social media and the internet is laudable. However, there are situations where the use of social media can take a downturn and sometimes lead to criminal charges. One such nefarious use of social media is the publication of intimate images without a person’s consent.

Section 162.1 of the Criminal Code ( Cr.C. ) states at paragraph 1:

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction.

It Is A Criminal Offence

As can be seen from this provision, it is a criminal offence to publish, distribute, sell make available or advertise and intimate image of a person without that person’s consent or being reckless as to whether that person gave their consent to that conduct. This type of situation typically occurs when let’s say a couple breaks up and one of the individuals, wanting to take their revenge, publishes online an intimate picture of the other person without the person’s consent. This section applies as well in different contexts and situations, but the situation used as an example here is probably a more common type of situation.

Level Of Scrutiny For Online Offences

The problem with publishing an intimate image without consent as well as other types of cyber crimes is that people tend to think that because the act is happening online, on the Internet, it may not have the same level of scrutiny as that of physical behaviour. But as section 162.1 Cr.C. shows, as well as other provisions of the Criminal Code , cyber behaviour is also regulated to some extent and there are more and more acts committed online that are considered criminal and, just like any other type of criminal behaviours are also punishable.

Maximum Sentence

In the case of the offence of publishing an intimate image without consent, the maximum punishment could be up to five years in prison (for an indictable offence). In addition, if a person is found guilty of the offence of publishing an intimate image without consent and is either convicted or discharged, the court may order under s. 738(1)(e) Cr.C. , in addition to any other sentence imposed, that the person pay restitution of the expenses that the victim incurred to have the intimate image removed from the Internet. In other words, not only will a person be found guilty, punished and sentenced to a possible jail term (depending on the seriousness of the situation and the background of the offender), but will also have to pay the victim for the expenses incurred by the victim to remove the image from the the online forum.

An intimate image for the purpose of the offence of publication of an intimate image without consent is defined at paragraph 2 of section 162.1 as follows:

(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

Paragraph 3

Paragraph 3 of section 162.1 provides for a defence when the publication of the intimate image serves the public good. However, whether the conduct serves the public good is a question of law and the motives of the accused are irrelevant.

In conclusion, the pervasiveness of social media use in court is an important factor to be aware of throughout the criminal process. It is important to communicate with a lawyer if you have any concerns of previous online publications resurfacing as evidence against you in your criminal proceeding.

Race, Discrimination and the Criminal Justice System

Thu, 10 Nov 2022 22:59:00 GMT

The case of George Floyd and the recent events since his death have shed the light on the ever present issue of discrimination in the criminal justice system. Sadly, discrimination in criminal law is not a new concept, on the contrary it is way too familiar to participants of the criminal justice system. The case of George Floyd, however, with all the attention it is garnering has the potential this time to bring about the changes that are needed in the criminal justice system .

For more about this issue and a discussion about the George Floyd case, please see my interview in Arabic about racial discrimination in criminal law.

George Floyd is neither the first African-American person to die during a police. Many relatively recent cases still come to mind (remember Trayvon Martin? Eric Garner?). Yet the case of George Floyd seems to be different and as a result may lead to changes in the criminal justice system.

Let's Be Clear

Although many previous cases of African-American people dying from police brutality or during arrests were highly publicized, they remained American cases, in the sense that their impact was mainly felt in the US. But this time, the case of Mr. Floyd caused not just almost the entire US to get into protest mode, but also other countries around the world joined in. Countries like France and Canada for example had their own protests and marches (Ontario had some just yesterday). Although these protests happened as a reaction to the Floyd case, they also reflect the fact that discrimination in the criminal justice system is very much a live issue in these countries themselves. Sadly, Canada is one such country where discrimination and systemic racism are present and familiar to participants of the criminal justice system.

Racism & Discrimination

Racism and discrimination are felt at different levels of the system : from the onerous bail conditions that are imposed on racialized accused individuals, to the heavy sentences and of course to the findings of guilt. Racism and discrimination are constantly present when they should not be and now is the time for change. If there is one potentially good thing about the George Floyd case, it is the international attention that this case got and its worldwide impact and ability to mobilize people all over the world.

This case should be the beginning of the end of systemic discrimination and the start of a more just and equal justice system in all countries of the world. Clearly discrimination is not only an American problem, it is, just like the Corona Virus, a world problem and now is the time to put an end to this collective disease. Mr. Floyd did not die in vain and it is up to us to ensure that.

Please read the Criminal Lawyers’ Association’s statement about this issue on the following link and please get involved if you can : https://criminallawyers.ca/cla-statement-on-recent-events-in-canada-and-the-united-states/

Impaired Driving: A Complete Guide

Thu, 27 Oct 2022 23:17:00 GMT

Nobody wants to have a criminal record. In order to avoid one, people who are facing an impaired driving charge for the first time would rather fight the charge than plead guilty to it. An impaired driving conviction for a first-time offender carries a mandatory minimum fine, and thus necessarily entails a criminal record, and a one year driving prohibition. But depending on your case, pleading guilty to impaired driving might allow you to start driving sooner than one year if you meet certain criteria. For that, you need to familiarize yourself with the Reduced Suspension with Ignition Interlock Program.

RIDE

What is RIDE?

RIDE stops are stops that police officers make as part of the Reduce Impaired Driving Everywhere program. This article from the Ottawa Citizen is a reminder that this is the time of the year for RIDE stops (though RIDE stops may be effected at other times of the year as well). RIDE stops are much more frequent during the holiday season.

First Conviction

A first conviction for impaired driving carries a mandatory minimum fine of $1000 and a mandatory driving prohibition for a period of one year. Whereas the fine is inevitable, it may be possible in some situations to reduce the driving prohibition period and start driving sooner than one year. In order for that to happen you must meet the Stream A eligibility criteria.

What Is Stream A?

Stream A is a program offered by the Ministry of Transportation that allows a person to start driving well before one year. However, there are criteria that must be met in order for a person to obtain entry into Stream A. In addition, a person must plead guilty to the offence of impaired driving and the plea must take place within 90 days of the date of the offence. Thus, there is a time incentive to enter a guilty plea to an impaired driving charge as soon as possible if a person anticipates getting into the Stream A program.

In addition to the guilty plea within the requisite timeframe, there are other eligibility criteria for the Stream A program.

The criteria include but are not limited to the following:

The impairment must be attributed to alcohol only and not to a drug or to a combination of drug and alcohol
You were not convicted of an offence under section 255 of the Criminal Code where bodily harm or death was caused
You were not convicted of a drive while disqualified offence under subsection 259(4) of the Criminal Code within the 5 years before your alcohol-impaired driving conviction
You are not subject to a court order denying you the authorization to drive with an ignition interlock device during the prohibition period
You were not subject to an ignition interlock licence condition on the date of the offence
You have not previously been granted a reduction to 10 years of an indefinite licence suspension

Are You Eligible For Stream A?

There is no guarantee that a person will obtain admission into the Stream A program, but fulfilling the eligibility criteria increases a person’s chance.

If You Are Eligible...

If you are eligible and admitted into the Stream A program, you will be able to drive three months after you enter a guilty plea with the condition that you install in your car, for a period of nine months, an ignition interlock device that will detect the presence of alcohol. You must be willing to install the device mandated by the Ministry otherwise you cannot benefit from the Stream A program. Moreover, despite the Stream A program, you will still be prohibited from driving for a period of three months following the guilty plea with or without the interlock device.

Cannabis (Bill C-45)

In the case of drugs, the law is changing regarding marijuana. Bill C-45 legalizing marijuana was passed, legalizing marijuana. A common misconception is that because cannabis is legal, it’s ok to drive while high. That is not true. The legalization of marijuana has resulted in changes to the laws on drinking and driving and a tougher approach on fighting these charges. Legislation came into effect on December 18th, 2018. How does that affect you?

The possession and consumption of other drugs such as cocaine and heroin remains illegal.

How Does Bill C-45 Impact Impaired Driving Laws?

Approved Screening Devices

For one thing, the new laws on drinking and driving will be tougher and will allow police officers to administer tests into approved screening devices (ASD) without reasonable suspicion. An approved screening device is a small device that police officers use on the road when they stop drivers they suspect of driving under the influence of drugs or alcohol. Up until December 18th, 2018, the law was that in order for a police officer to administer the ASD s/he had to have reasonable suspicion that the person was driving while impaired. Starting on December 18th, 2018, police officers will be able to administer those tests even without having reasonable suspicion. This gives police officers more chances to test whether or not a person is impaired even if there seems to be no basis to administer the test.

Immigration

In addition, the punishment for impaired driving cases has increased and the effect of that is that convictions for impaired driving will cause immigration issues to non Canadian citizens including a risk of deportation. If you are a permanent resident and you now get arrested for impaired driving or over 80, it is important that you seek advice from an immigration lawyer as the charge you are facing will have an impact on your immigration status.

Bolus Driving Defence

Some of these changes have eliminated some defences such as the bolus driving defence. Bolus driving is when the accused person drinks a large quantity of alcohol just before getting behind the wheel, so the alcohol was still being absorbed and, consequently, their [blood alcohol concentration] would be under 80 mg at the time of driving.

An interesting article on this issue was published in the Lawyer’s Daily, and here’s a link to that article:

https://www.thelawyersdaily.ca/articles/9770?utm_source=rss&utm_medium=rss&utm_campaign=section

Thus, if you are facing an impaired driving charge for the first time and you are not sure whether or not you want to fight the charge, check with your lawyer if you may be eligible for a reduced suspension. If so, and if it is important for you to start driving sooner than one year, then discuss with your lawyer the possibility of pleading guilty in order to benefit from the Stream A program. Make sure you are aware of all the eligibility criteria for the program before you plead guilty and also make sure you fully understand the consequences of a guilty plea. Finally, make sure that your plea is entered within the appropriate timeframe.

For more information about the reduced suspension with ignition interlock program, please visit the Ministry of Transportation website .

A Few Safety Tips

Driving with an alcohol level above the legal limit is a criminal offence that may cause you to have a conviction and a criminal record. Here are some useful tips to avoid or minimize the damage caused by drinking and driving related situations.

1 - Know The Legal Limit

The fact that you have alcohol in your system while driving does not automatically mean that you have committed a criminal offence. In fact, the law allows you to drive with a certain amount of alcohol in your system. The legal limit is 80 mg of alcohol in 100 ml of blood. This legal limit is prescribed by paragraph 253 (1) (b) of the Criminal Code of Canada .

2 - Driving Below The Limit

Even if you are driving with an alcohol level in your system below the legal limit, you may still commit an offence if your ability to drive is impaired by alcohol. This offence is called impaired driving. Impaired driving is manifested in various ways such as zigzagging on the road, going from one lane to another when there is no reason to be switching lanes. Impaired driving is codified at paragraph 253(1)(a) of the Criminal Code of Canada .

3 - Avoid Driving After Consuming Alcohol

A common mistaken belief is that just a few drinks will not impair your ability to drive. This is not true. Even if you are driving with an alcohol level below the legal limit, your ability to drive may still be impaired and, if caught on the road driving while impaired, you may be charged with an offence. Also, while having a few drinks may not effect some of your capacities, this does not mean that you are safe to drive. So be careful avoid driving altogether even after having consumed just a few drinks.

4 - What To Do If You Have Been Caught Consuming Alcohol While Driving

If you decide to take the risk and to drive while your ability to drive is impaired or with a blood alcohol level above the legal limit and you are caught by the police, there are a few things you need to know. The most important thing is to REMAIN SILENT. The best thing you can do to yourself when you are caught for a drinking and driving related incident is to remain silent event if you think you have a good excuse or justification to explain the situation. Your alcohol level was bad enough to get you caught on the road while driving, it most probably won’t serve you well if you open your mouth and start talking to the police. Moreover, the smell of alcohol emanating from your breath will betray you. So minimize the damage by not saying anything that you might regret later on. You have a constitutionally protected right to remain silent and so if you choose not to talk to the police, you are entitled to do so. On the other hand, be cooperative with the police. If they ask you to perform roadside tests, comply and do the tests but do not say anything while you are doing the tests. Not complying with police orders will cause you to be charged with the offence of obstruct police and this may be added to the impaired/over 80 charge you will be dealing with. So comply while remaining silent. Finally, at the earliest occasion, talk to a lawyer. If you have a lawyer and you know his number, ask to speak to that lawyer immediately. If you do not have a lawyer, ask the police to speak to one and they should provide you with a list of lawyers you may call. Also, that list may indicate which lawyers speak French and so if your language of preference is French, make sure that you are talking to a lawyer who can give you legal advice in French.

So make sure that you don’t drive if you are under the influence of either or both alcohol and drugs. You should always make arrangements BEFORE your return as to how you will go back home. If you are celebrating at a friend’s place or a family member’s place, ask if you can stay for the night. If not, ask for a cab/Uber. And if that is not an option, ask for someone who is sober to drive you back home. The best way to avoid a drinking and driving charge is not to drive at all. You do not want the festivities of the Holiday Season to be ruined by criminal charges that are going to be difficult to get rid of and that may very likely cause you to have a criminal record.

Do You Know Your Way Around The Ottawa Court Of Justice?

Sat, 22 Oct 2022 11:00:00 GMT

When you are facing a criminal charge in Ottawa, the courthouse you need to go to is located at 161 Elgin Street, Ottawa, Ontario. If you are released by the police after being charged, this address will appear on one of the documents that the police will give you. This document is called a promise to appear. What you will need to know as well is the various courtrooms you are likely to be dealing with. These courtrooms are located on the first floor of 161 Elgin Street, where the Ontario Court of Justice (OCJ) is. This blog provides general information about the various courtrooms of the OCJ in the Ottawa courthouse.

The OCJ

Matters are likely to be dealt with in the OCJ. There are times when your matter may proceed in the Superior Court of Justice which, for criminal matters is mainly located on the third floor. But most criminal proceedings take place in the OCJ which you will find on the first floor of the Ottawa Courthouse. To find the courtrooms of the OCJ, just go downstairs once you have entered the main entrance of 161 Elgin Street, which is located on the second floor.

Courtroom #6: Bail

If the police don’t release you after they’ve charged you with a criminal offence, you will be held for a bail hearing. Usually, bail hearings take place in courtroom number 6 in the Ottawa courthouse. Matters in this courtroom start at 9:30 am. Some bail hearings can take place in other courtrooms such as #3, but courtroom #6 is the main bail courtroom and so this is likely where your bail matter will be held.

Usually a justice of the peace presides over matters in this courtroom. But soon, you might see judges sitting in #6. You will be able to determine whether you are dealing with a judge or justice from the color of the sash the person is wearing: a green sash means that it is a justice of the peace. A red sash means it is a judge.

When addressing a justice of the peace you should address them as “Your Worship”. When addressing a judge, refer to them by saying “Your Honour”.

Courtroom #5: Remand and 1st Appearance

If the police release you after they’ve charged you with a criminal offence, or if you are released following a bail hearing, the next court appearance you will have to make is in courtroom number 5 which is also known as the remand court. In #5, you will have your first appearance in court, whether it is or not after a bail hearing. You will also appear in number five for administrative matters such as adjournments.

Matters in this courtroom start at 8:30 am. If you have a lawyer, the matters are addressed by alphabetical order of the lawyer’ last name. If you do not have a lawyer, you will have to wait until the matters for which lawyers are retained are dealt with.

Usually, a justice of the peace sits in #5. You will be able to determine that from the green sash they are wearing.

Courtroom #7: Guilty Plea

If you want to plead guilty to the charges that you are facing, usually #7 is the place to go. Matters in this courtroom start at 9 am and are presided over by a judge.

Those are the main courtrooms you need to know about when facing a criminal charge. There are other courtrooms that serve specific functions but they may or not be relevant to your case, such as mental health court and federal remand court. The main courtrooms you need to know about when you are first facing a criminal charge are the ones discussed in this post.

Finally, if you need assistance and you do not have a lawyer, you can always ask duty counsel for assistance. Their office is located between courtrooms #5 and #6.

First Appearance In Ontario: What You Need To Know

Fri, 21 Oct 2022 01:13:00 GMT

After the police have charged you with an offence, or after you have been released following a bail hearing, you typically have to go to court on a specified date and make your first appearance before a justice.

Promise to Appear

The first appearance date is usually indicated on a document that the police will give you after they’ve charged you with an offence. That document is called a Promise to Appear and in it you will find the date, time and address of your first appearance.

If you are facing criminal charges in Ottawa, your first appearance will be held in courtroom number 5 of the Ottawa Courthouse located on 161 Elgin Street. Matters in courtroom number 5 start at 8:30 am and the list of matters usually go by alphabetical order of lawyers’ names.

Outside of courtroom number 5, you can usually find a person sitting in front of a table with a list of matters scheduled in courtroom number 5. That person will also have what is called the First Appearance Package. If you are attending for your first appearance, you should ask the person sitting outside of courtroom number 5 for your First Appearance Package.

First Appearance Package

A First Appearance Package consists of a Charge Sheet that contains the charges you are facing, as well as some personal information about you such as your name, date of birth, phone number. The Charge Sheet also includes the Synopsis, which is a summary of the facts that led to the charges against you. Finally, the First Appearance Package contains the Crown Screening Form, which indicates the Crown’s sentencing position on an early guilty plea, as well as the manner in which the Crown elects to proceed, whether it will be summarily or by indictment.

Although the First Appearance Package is usually expected to be available outside of courtroom number 5 at your first appearance date, that may not always be the case. If that is the situation you will have to request it from the Crown’s office on the third floor of the Ottawa Courthouse.

Pleading Guilty

Nobody wants to be facing a criminal charge and most of the times people would do anything to end a criminal proceeding as soon as possible. One way of doing so is to plead guilty on a first court appearance. Although pleading on a first appearance may seem compelling as it will put an early end to a criminal matter, there are, however, some risks associated with that option. This post does not constitute legal advice, its goal is solely to provide food for thought about some elements to consider before deciding whether or not to plead guilty on a first court appearance.

Consider this before pleading guilty at a first appearance

One of the problems of pleading guilty on a first court appearance is that often you will not have had access to disclosure at that point. Disclosure is the evidence that the Crown has against you and the evidence based on which the prosecution will proceed. Without the disclosure, you will not be able to know the Crown’s case against you and it will be difficult to assess whether or not there is a defence to the charge you are facing. Therefore, pleading guilty on a first appearance without having had a chance to at least obtain and review disclosure may be risky, as it is possible that the disclosure will reveal that you do have a defence. If there is a defence and a chance of winning (although there is never a guarantee of winning) then it may be worth it to proceed and to fight the charge. If you end up winning at trial, then you will be acquitted and you will not have a conviction registered against you. So for that reason, it may be prudent to at least wait until you obtain disclosure, review it with a lawyer, obtain legal advice as to whether or not there is a defence and then decide to plead guilty.

Other consequences to consider

Another reason why you should be cautious before you decide to plead guilty on your first appearance is that there are often collateral sentencing consequences such as immigration consequences, employment consequences etc., … So before you plead guilty on a first appearance, make sure you obtain legal advice about the potential consequences of your guilty plea. The cases in which people usually want to plead on a first appearance are impaired driving cases where the penalty on a first offence is usually a fine. The tendency for accused people in this type of situation is to plead guilty and pay the fine and be over with the situation. However, a fine means that the person is convicted of a crime and a conviction means that there will be a criminal record and a criminal record will add difficulties on future employment opportunities. So although it may sound appealing to just plead guilty to an impaired driving case and to pay the fine, once you do that, you will have a criminal record that will cause you difficulties in your future job search. Moreover, you will also have to pay a victim fine surcharge which will be 30% of the amount of the fine you paid for the impaired driving offence.

These are but some of the problems associated with pleading guilty on a first appearance. They are in no way exhaustive and you should always seek legal advice before you make a decision. In some situations pleading guilty right away may well be the best way to deal with a criminal proceeding but in any event, it is prudent to be cautious and seek legal advice before making that decision.

Six Rapid Practical Court Tips For New Lawyers

Thu, 22 Sep 2022 10:57:00 GMT

For the past couple of years, many work environments switched to a virtual setting. That switch also happened in the legal profession where, for the very first time, we have witnessed a mass reliance on virtual court proceedings. The practice of law has been modified during the two years where courts became virtual. Much of the in person etiquette and formalities were gone during the Covid times. Robes were no longer mandatory in Superior Court proceedings (who would have thought the would happen?!) But now, the old format is slowly regaining its dominance, and in- person court appearances are slowly becoming the norm again. With that return to the old, the old court room practices and etiquette are back.

Quick Review Of The Basics

Many young counsel, especially those who were called to the Bar during the pandemic, haven’t had much opportunity to experience in person court proceedings. Some of you may be a bit confused about what to do in court and how to do things the right way. Here are six rapid and practical tips to help you.

1- When to rise

When a judge or justice of the peace enters or leaves the courtroom, everybody inside
the courtroom must rise. That includes counsel, clerks, the audience and your client.

When entering a courtroom in which a judicial official is already sitting/presiding, counsel must bow.

2- Judge/Justice of the Peace – Your Honour/Your Worship

When a judge is presiding, the proper way to address the judge is Your Honour. When a justice of the peace is presiding, then the proper way to address the justice is Your Worship.

In order to visually distinguish between a judge and a justice of the peace, look at the colour of the sash : if the presiding official is wearing a red sash, then a judge is presiding. If the sash is green, then a justice of the peace is presiding.

3- Keep your distance from the judge/justice of the peace

Never get close to the judge unless the judge/justice gives you permission to do so.

Even if you want to hand the judge or justice a document, that should be done through the court clerk. There is a reason why the court clerk sits between the judge/justice and counsel, and that is because the clerk is the intermediary between counsel and the court.

4- Communication with the Judge/Justice outside of court

If you have to communicate with a judge or justice outside of court, say to send materials, or for any other reason related to a matter, communicate with the assigned judicial assistant. In most jurisdictions in Ontario, judges have at least a judges’ chambers reception email. Obtain that email address and send your email to that email address directing it to the particular judge you want to reach or to his/her attention.

If you have the email address of the judge’s assigned assistant, email the assistant. Do not email the judge directly in relation to a case unless the judge gives you permission to do so.

5- Speak through the court

Do not engage directly with opposing counsel in court. The proper way to communicate is to address the court and ask about what opposing counsel will do. All communications should be made between counsel and the judge and not between counsel directly.

6- Punctuality

Finally, one last tip that is very obvious, but that is more difficult to comply with in in-person proceedings as opposed to Zoom proceedings is punctuality. It is very important to be on time for court appearances. In circumstances where some external factors prevent you from being on time, explain the delay.

The Right to Silence: Why It’s Important To Keep Your Mouth Shut

Tue, 25 Jan 2022 00:55:00 GMT

You just got arrested. The police tell you that they will charge you. You believe you’re innocent. The police tell you that you have the right to speak to a lawyer. You do so and your lawyer tells you not to say anything. But you think that if you actually explain the situation to the cops, they will let you go. But your lawyer insists that you keep your mouth shut. But you’re innocent, and you truly believe that if you explain things you will get out...

So why do lawyers tell clients to shut up and not say anything to the police?

Here Is Why You Remain Silent

You're Making A Statement

When you say something to the police, that thing you’re saying is a statement. The words that come out of your mouth are statements and the cops are either writing your words down or video/audio recording their interaction with you. So basically whatever comes out of your mouth is being recorded or reduced to writing and then will be used as evidence against you in your trial where your lawyer will have to defend you and show that you’re innocent.

The Issue With Making A Statement To The Police

The problem when you speak to the police when you are arrested is that you do not have half the information the police have against you. You are in a vulnerable position, giving the police information which will be recorded and used against you and that information is not even based on the full amount of information that the police have. What you will end up doing by giving a statement is you are actually helping the police strengthen their case against you. Why would you do that? Why would you give them information that they can turn against you?

And the problem when you give information to the police is that you will be stuck with that version of facts that you gave at the moment of the arrest and if later at a trial you want to give a different version, you will appear as though you are lying because guess what? When you were arrested you said one thing and at the trial you are saying something else.

So basically, when a lawyer tells you not to say anything, it is because the lawyer is looking at the long term consequences, on the trial date where it will be very difficult to present a different version of facts when you had already provided a version when you were arrested. In addition, whether you give a statement or not, the police in most cases will charge you anyways. So by giving a statement not only will you not prevent yourself from being charged, but you could also actually make it more difficult for your lawyer to defend you.

Cases Of Interest

Beware Of Arbitrary Detention And Know Your Section 9 Rights

Wed, 08 Dec 2021 00:37:00 GMT

As we are heading into the Holiday Season, police activity and presence on the road and in public places will increase and with that, more police interactions will take place. When dealing with police officers, it is important to remember that you have rights that are constitutionally protected under the Canadian Charter of Rights and Freedoms . The most prominent rights that are triggered during police interactions are sections 7, 8 , 9 and 10 of the Charter . The focus in this post will be on the right under section 9, which is the protection against arbitrary detention or imprisonment.

Section 9 of the Charter states that

Everyone has the right not to be arbitrarily detained or imprisoned

This right protects individual liberty against unjustified state interference ( R . v. Le , 2019 SCC 34 at para. 25). It also protects an individual’s right to make an informed choice about whether to interact with the police or to simply walk away ( R . v. Thompson , 2020 ONCA 264 , at para. 30). In addition, when a person is detained, an additional right is triggered, which is the right to be informed of the reason for the detention (right guaranteed under s. 10( a ) of the Charter ), and the right to retain and instruct counsel without delay and to be informed of that right (guaranteed by s. 10( b ) of the Charter ).

Arbitrary Detentions

Given that a person has the right to be protected against arbitrary detentions, and that upon detention, additional rights are triggered, it is important to establish when a detention occurs.

When does a Detention arise?

A detention arises only where the police suspend an individual’s liberty through “a significant physical or psychological restraint”. Not every interference with an individual’s liberty attracts Charter scrutiny ( R . v. Tutu , 2021 ONCA 805, at para. 12).

Psychological Detention

Physical detention is usually obvious and easy to detect. When the police handcuff an individual, the person is physically and obviously detained at that point. What is not so obvious though is when a person is psychologically detained. A person may be detained without there being actual physical contact or touching on the part of the police. The Supreme Court noted in Grant that psychological detention is established where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply ( Tutu , at para. 13).

2 Types of Psychological Detention

In Thompson at para. 36 the Ontario Court of Appeal explained that psychological detention or restraint can arise in two ways, when: (1) “an individual is legally required to comply with a police direction or demand”; or (2) absent legal compulsion, when “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand.

For the purpose of this analysis, what was in the mind of the accused person or the police officer’s intention are irrelevant. What matters is whether a reasonable person in the circumstances of the accused would conclude that the police conduct effected a detention ( Tutu , at paras. 20 & 21).

Psychological Detention will happen much before a person is arrested

Thus, in certain police encounters, a psychological detention will occur way before a person is arrested and physically restrained by police. A detention can occur when a police officer for example blocks with his police cruiser a person’s car and asks the person a series of questions thus creating an expectation on the part of the person that there is an obligation to answer police questions. The moment an individual is detained, the police officer has an obligation to inform the individual of the reason for the detention and that s/he has the right to retain and instruct counsel without delay. Failure on the part of the police to implement those rights may constitute a breach and a potential exclusion of the police evidence that was obtained following the police interaction.

If you have encountered such a situation where you were detained and police did not provide you with your rights adequately, you should contact a lawyer and provide the facts of your case. The facts are very important and will determine whether or not there was a breach of your rights.

Do You Know What “Reasonable Doubt” Means In Criminal Law?

Sun, 04 Jul 2021 21:52:00 GMT

What Does 'Reasonable Doubt' Mean?

The phrase “reasonable doubt” is often heard in the criminal law context. The words “reasonable” and “doubt” are ordinary and easy to understand. Yet when combined in the legal phrase “reasonable doubt”, the resulting expression does not have an ordinary meaning and it is an error on the part of the trier of fact to understand in its ordinary meaning. The concept of reasonable doubt is inextricably linked to the most fundamental principal in the criminal justice system which is the presumption of innocence. Thus, it is extremely important to really understand this concept.

Burden Of Proof

In criminal law, an accused person is presumed innocent until proven guilty. The burden of proof is on the Crown: the Crown must prove the accused’s guilt beyond a reasonable doubt and that burden never shifts. The standard of proof beyond a reasonable doubt is higher than the standard of proof in civil actions which is proof on a balance of probabilities.

R . v. Lifchus , [1997] 3 SCR 320

In the case of R . v. Lifchus , [1997] 3 SCR 320, the Supreme Court of Canada explained and defined the concept of reasonable doubt. In its discussion of that concept the Court states that a reasonable doubt cannot be based on sympathy or prejudice and must not be imaginary or frivolous. The Crown is not required to prove its case to an absolute certainty since such an unrealistically high standard could seldom be achieved ( Lifchus , par. 31). Proof establishing a probability of guilt is also not sufficient to establish guilt beyond a reasonable doubt ( Lifchus , par. 32). A reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or absence of evidence ( Lifchus , par. 36).

Summary from Supreme Court of Canada

In its own words, the Supreme Court of Canada summarized the concept of reasonable doubt as follows ( Lifchus , paras. 36, 37):

36 […]* the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;
the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;
a reasonable doubt is not a doubt based upon sympathy or prejudice;
rather, it is based upon reason and common sense;
it is logically connected to the evidence or absence of evidence;
it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
more is required than proof that the accused is probably guilty ‑‑ a jury which concludes only that the accused is probably guilty must acquit.
37 On the other hand, certain references to the required standard of proof should be avoided. For example:
describing the term “reasonable doubt” as an ordinary expression which has no special meaning in the criminal law context;
inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives;
equating proof “beyond a reasonable doubt” to proof “to a moral certainty”;
qualifying the word “doubt” with adjectives other than “reasonable”, such as “serious”, “substantial” or “haunting”, which may mislead the jury; and
instructing jurors that they may convict if they are “sure” that the accused is guilty, before providing them with a proper definition as to the meaning of the words “beyond a reasonable doubt”.

To read the full Lifchus decision, please visit the following link: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1543/index.do

You can also find other Supreme Court decisions on the Supreme Court website: https://scc-csc.lexum.com/scc-csc/scc-csc/en/nav_date.do

Assessing Credibility And Proof Beyond A Reasonable Doubt In A Criminal Trial

The standard of proof in criminal trials is proof beyond a reasonable doubt. This is a high standard of proof and much higher than the civil standard of proof on a balance of probabilities.

Competing Narratives

In criminal cases, the issue for the trier of fact (judge alone or judge and jury) is whether the evidence adduced, taken as a whole, establishes the guilt of the person charged beyond a reasonable doubt. Of particular importance in cases in which the evidence reveals two (or more) competing narratives, the trier of fact must not decide the case simply by choosing between the narratives presented. To do so would not be faithful to the burden and dilute the standard of proof. ( R . v. Debassige , 2021 ONCA 0484, par. 126, thereafter referred to as Debassige ).

So if the trier of fact is not supposed to be choosing between different narratives, how should a trier of fact determine the guilt or innocence of an accused person?

The leading case on this issue is the Supreme Court Case of R. v. W.(D.) , [1991] 1 S.C.R. 742 ( referred to hereafter as W.D. ). In W.D. , the Supreme Court set out a series of three steps to ensure that a trier of fact remained focused on the principle of reasonable doubt where confronted with conflicting versions of relevant events ( Debassige , par. 127).

The three W.D. steps are stated as follows:

If the trier of fact believes the evidence of the accused, the trier of fact must acquit.
If the trier of fact does not believe the testimony of the accused but is left in reasonable doubt by it, the trier of fact must acquit.
Even if the trier of fact is not left in doubt by the evidence of the accused, the trier of fact must ask him/herself whether, on the basis of the evidence which s/he does accept, s/he is convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Common Ground

A common ground of appeal regarding the application of the W.D. test is that the test was not properly stated to the trier of fact. In other words, in a jury case, that the test was not stated to the jury in the exact terms in which it was stated in the case of W.D. by the Supreme Court. In the case of a judge alone trial, the same complaint arises in that in his /her decision, the judge, when referring to W.D. , did not express the test as it was expressed by the Supreme Court. Yet in several cases about the W.D. test, courts have been clear that it is not necessary for the test to be expressed word by word as it was expressed in the W.D. decision. The Ontario Court of Appeal recently made that reminder in the case of Debassige and stated at par. 127 that:

From W.(D.) itself and myriad decisions following its lead, it is clear that the steps need not be rigidly expressed by a judicial trier of fact, nor articulated in exactly the way that W.(D.) suggests to a lay trier of fact: W.(D.) , at p. 758; R . v. S. (W.D.) , [1994] 3 S.C.R. 521, at p. 533; and C.L.Y. , at para. 7. [Emphasis added]

The Court in Debassige explained at par. 129 that what is critical is not so much whether the precise formula proposed in W.(D.) has been faithfully uttered in final instructions to the jury, but rather whether the jury has been properly informed on the burden and standard of proof they are to apply in deciding whether the Crown has proven the essential elements of the offence charged beyond a reasonable doubt [Emphasis added].

How should a trier of fact decide the accused’s guilt or innocence?

So if the statement of the test is not what matters here, how should a trier of fact decide the accused’s guilt or innocence? That determination must be based on the whole of the evidence and whether it leaves the trier of fact with a reasonable doubt as to the guilt of the accused. In other words, the determination of guilt must be based not just on the competing narratives but on the totality of the evidence presented to the trier of fact. One of the narratives presented at trial might sound more compelling than the other and yet when considered with the rest of the evidence it could still leave the trier of fact with a reasonable doubt. In that case the trier of fact must acquit the accused. In the Court of Appeal’s own words in Debassige :

[130] The principles expressed in the W.(D.) formula underscore the relationship between credibility and reasonable doubt. They make it clear that reasonable doubt applies to credibility. In a jury instruction, this relationship must be explained. From what is said or left unsaid a jury must not be left with the impression or understanding that they are to decide the case according to their preference of the competing versions advanced in the evidence. Instead, the jury must understand that their verdict must be based on whether, on the whole of the evidence, they are left with a reasonable doubt about the guilt of the person charged. [Emphasis added]

Ontario Supporting Children and Youth with Complex Mental Health and Addictions Needs

Sat, 27 Feb 2021 20:20:00 GMT

Funding will Help Address Gaps in Care and Wait Times for Services

TORONTO — The Ontario government is investing up to $10.5 million to immediately expand the mental health Secure Treatment Program for the province’s most vulnerable children and youth. This funding will enhance access to these services and add up to 24 new beds at the Syl Apps Youth Centre in Oakville and at the Roberts/Smart Centre in Ottawa. By expanding this program, an additional 52 children and youth with complex needs will receive direct mental health and addictions support each year.

“Our government is continuing to fulfill our promise of making mental health and addictions a priority, and ensure Ontarians have the services they deserve – when and where they need them,” said Christine Elliott, Deputy Premier and Minister of Health. “Today’s investment in Ontario’s Secure Treatment Program will help vulnerable children, youth and their families in their time of need and allow them to access supports faster.”

Ontario’s Secure Treatment Program provides intensive care for children and youth experiencing acute and complex mental health and/or addictions challenges that may put them at risk of self-harm or harm to others. The expanded Secure Treatment Program will address gaps in care and improve access while decreasing existing wait lists and extensive wait times. The Syl Apps Youth Centre is expected to accept additional children and youth by the summer, while the Roberts/Smart Centre is expected to be fully implemented in 2022-2023.

The province is also increasing annual base funding by 10 per cent at the Syl Apps Youth Centre, the Roberts/Smart Centre, as well as the Youthdale Treatment Centre in Toronto.

“This much-needed funding will help expand Ontario’s Secure Treatment Program, so that our most vulnerable children and youth can take that next important step in their journey towards mental wellness,” said Michael Tibollo, Associate Minister of Mental Health and Addictions. “By investing today, we are closer to reaching our shared goal of building a modern, connected and integrated mental health and addictions system for the future. Our government remains fully committed to creating a system where all Ontarians, young and old, have access to the highest-quality supports that meet their unique needs.”

“The Secure Treatment Program is an essential part of the child and youth mental health system serving children and youth experiencing high-need and complex mental health issues who require intensive and in some cases life-saving treatment. I know firsthand just how important this investment will be to other Ontario kids and their families, who right now are facing long wait times for secure treatment and as a result often end up in the hospital in crisis,” said Kimberly Moran, Chief Executive Officer, Children’s Mental Health Ontario. “This is a critical step and we appreciate the Ministry of Health putting dedicated focus on this group of vulnerable children and youth, and look forward to continuing our work together to build up a comprehensive and connected mental health system for children, youth and families.”

This funding is part of the government’s commitment to invest $3.8 billion over 10 years to implement the Roadmap to Wellness , Ontario’s plan to establish a comprehensive and connected mental health and addictions system to serve Ontarians of all ages.

More information on the following link: https://news.ontario.ca/en/release/60491/ontario-supporting-children-and-youth-with-complex-mental-health-and-addictions-needs

Maya's Must Reads: Top 3 Recommendations

Mon, 04 Jan 2021 01:04:00 GMT

2020 is finally over and it is time to start afresh. A good way to start the new year is to adopt a new mentality and start with new ideas to cope with the year ahead. If anything, 2020 has taught us the importance of flexibility and adaptability in the face of major challenges. What’s a better way to adopt new ideas and techniques than reading books that teach us techniques and methods to change? Here are three recommendations for books that were released in 2020. If you have not read them in 2020, it is a good idea to read them now at the beginning of the year to learn from them.

1- Your Next Five Moves – Master the Art of Business Strategy

By Patrick Bet-David with Greg Dinkin

This is a business book and it provides excellent business advice and yet its tips easily apply a well to other areas in life. The book is premised on the idea that “effective strategy is about making a move and being prepared to launch another series of moves based on how the market or your competition reacts” (Introduction p. XII). The analogy that the author uses is the game of chess, where a grand master of chess is able to see twelve moves ahead. The book is packed with all kinds of useful advice and strategies and is a useful guide not just for business but for life in general.

For more information about the author, you can follow him on social media and also listen to his podcasts or YouTube channels : Valuetainment and the Bet-David Show.

2- Think Like a Monk – TRAIN YOUR MIND for PEACE and PURPOSE EVERY DAY

By Jay Shetty

This book is interesting. It is the first book ever written by former monk turned social media star Jay Shetty. After living for three years as a monk, Jay Shetty decided to leave the monastic life and was on a mission to make wisdom viral. He used social media to spread his wisdom messages posting extensively on YouTube and through his podcast On Purpose. His message is mainly aimed at providing practical tips for daily life practices that allow us to find peace and purpose. Jay teaches how to acquire the wisdom and peace of mind of monks without having to actually live like a monk. This book summarizes all the wisdom tips and messages Jay has been offering through his social media platforms. If you do not know Jay Shetty, this book is a good way to get to know more about his philosophy. This book is also a good book to read at this time when we are facing so many uncertainties and where it is difficult at times to find inner peace.

For more information about Jay Shetty, you can find him on all social media platforms and you can also listen to his podcast On Purpose.

3- The Archer by Paulo Coelho

By Jay Shetty

This is the latest book by famous author Paulo Coelho. The author needs no introduction. If you never heard of him, you were probably living under a rock. The Archer is a very simple and elegantly written book. It is written in the typical Coelho style and provides wisdom messages through a simple story. The book contains beautiful illustrations and can easily be read in one weekend.

W.(D.) And Conflicting Testimonial Accounts

Wed, 09 Dec 2020 22:41:00 GMT

The W.(D.) Test

The Ontario Court of Appeal (ONCA) released today the decision of R . v. Smith , 2020 ONCA 782 ( Smith ) . The focus of this case is the application of the W.(D.) test. The W.(D.) test, is a test from the Supreme Court of Canada case of R. v. W.(D.) , [1991] 1 S.C.R. 742 , that triers of fact must apply in a criminal trial in order to evaluate conflicting testimonial accounts. The test consists of three steps, which do not always seem to be obvious in their application and which could sometimes lead to errors in its application. The case of Smith is one such case.

The three steps of the W.(D.) test are as follow:

First, if the trier of fact believes the evidence of the accused, the trier of fact must acquit the accused.
Second, if the trier of fact does not believe the testimony of the accused but is left in reasonable doubt by it, the trier of fact must acquit.
Even if the trier of fact is not left in doubt by the evidence of the accused, the trier of fact must ask him/herself whether on the basis of the evidence which s/he accepts, s/he is convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Explaining The Steps

The first step of the test is straight forward: if the trier of fact believes the evidence of the accused, then the issue is simple, the accused must be acquitted. It is often on the second and third prongs that the test gets sometimes confusing for triers of facts. In Smith , this seems to have happened. Although the trial judge correctly stated the test, he did not provide explanations as to why he was left in doubt with the evidence of the accused. The trial judge in Smith clearly rejected the evidence of the accused, but the W.(D.) test does not end there. There still are two other steps that could lead a trier of fact to have reasonable doubt.

Where else does the W.(D.) Test apply?

The W.(D.) test applies not just to an accused person’s testimony, but to any defence evidence and to any potentially exculpatory evidence whether led by the defence or the Crown ( Smith , par. 12).

What happened at the trial?

At Mr. Smith’s trial, the trial judge mentions the other evidence presented by the accused (other than the accused’s testimony), such as Mr. Smith’s girlfriend’s testimony. That other evidence corroborates the accused’s version of facts and yet the trial judge in Smith never explained how that other evidence could not raise a reasonable doubt. In the ONCA words, the evidence of the accused’s girlfriend potentially confirmed his version of events and, in conjunction with his evidence, could have led to reasonable doubt ( Smith , par. 14).

The ONCA

The ONCA states in Smith that W.(D.) sets out a methodology for triers of fact that is intended to focus their attention on the analytical steps that must be taken in assessing the evidence in order to ensure that the trier of fact considers whether the evidence as a whole proves the accused’s guilt beyond a reasonable doubt ( Smith , par. 17). The trial judge in Smith did not explain how certain points he considered undermined Mr. Smith’s version of events and in fact, those points seem to bolster the points he made.

The Trial Judge

For the trial judge to simply state the W.(D.) test and list factors and state that he does not accept the accused’s evidence does not explain why he rejected his evidence ( Smith , par. 22). In addition, in applying W.(D.) ., the trial judge also must consider whether any of the evidence at the trial raises a reasonable doubt. It is not clear from the trial judge’s reasons that he was alive to this ( Smith , par. 23).

The case of Smith is an interesting case because it provides an explanation and some clarification of the second and third prongs of the W.(D.) test which often lead to confusion. In this case, the factors on which the trial judge relied to decide that he had no reasonable doubt, were factors that in fact could raise a reasonable doubt yet the trial judge did not explain on what basis he still had no reasonable doubt.

Defamation, Slander And Libel. What's The Difference?

Tue, 01 Dec 2020 00:38:00 GMT

Defining These Terms

Defamation, slander and libel are terms that are often confused and used interchangeably. Though all three have to do with damaging a person’s reputation, there are some subtle distinctions to keep in mind.

Defamation

A general and all encompassing term that refers to any statement/action that harms another person’s reputation.

Slander

A defamatory statement/action that is oral.

Libel

A defamatory statement that is made in writing. In other words, an oral statement that harms a person’s reputation is slander. When the harming statement is in writing, it is libel.

Why are these terms and distinctions important to know?

We are now living in a time where everything is becoming more and more virtual and connected. It is easy for words, whether written or oral, to spread and to have a damaging impact. A victim of slander or libel may actually sue for damages the person/organization responsible for damaging their reputation. Thus it may ultimately cost a person money to actually post or publish a defamatory statement about another person/organization. This is in addition to the hardships of going through a civil lawsuit and paying for legal fees.

Defamation Going Beyond Civil Courts

Defamation may also go beyond civil courts and could actually be criminal. The Criminal Code of Canada contains several provisions on libel. The Code contains provisions on “seditious libel” (libel causing people to rebel against authority) in section 59 and provisions on “defamatory libel” sections 297 and following.

Defining Defamatory Libel

Defamatory libel is defined in the Code in section 298 as a matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him/her to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published.

Maximum Punishment For Defamatory Libel

Defamatory libel is punishable by a maximum of two years in prison if it is prosecuted by indictment (section 301 Code ). However, if the defamatory libel that is published is known by its publisher to be false, then the libel in this case is punishable by a maximum of five years in prison (section 300 Code ).

Do You Know That A Criminal Charge Could Have Immigration Consequences?

Mon, 09 Nov 2020 19:29:00 GMT

Criminal charges can have a serious impact on an accused person’s life: in addition to the stigma surrounding a person accused of committing crimes, if criminal charges lead to a conviction, the accused will end up having a criminal record. A criminal record is an impediment to employment and to traveling. But do you know that if you are not a Canadian citizen, you may also be facing immigration consequences?

Non-Canadian Citizens And Criminal Charges

If you are not a Canadian citizen and you are facing criminal charges, you may face serious immigration consequences, including deportation. Section 36 of the Immigration and Refugee Protection Act ( IRPA ), S.C. 2001, c. 27 states that:

Serious criminality

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

Maximum Term Of Imprisonment

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

This section of the law applies to permanent residents and foreign nationals. A foreign national is defined in section 2 of IRPA as a person who is not a Canadian citizen or a permanent resident, and includes a stateless person.

Committing A Crime Outside Of Canada

If you are either a permanent resident or a foreign national living in Canada and you are facing a criminal charge which, from an immigration perspective, constitutes a serious criminality offence, you will be inadmissible to Canada in the following cases:

you have been convicted of a crime that is punishable by 10 years or more in prison ; or
you have been convicted of an offence for which a term of imprisonment of more than six months has been imposed.

The 1st Step

The key elements to focus on in this provision are the conviction and the punishment for the offence that you are facing and/or the length of the term of imprisonment that is imposed. The first step in the analysis is that you have to be convicted of a criminal offence in order for there to be potential immigration consequences. There is no conviction if the sentence imposed by the court is a discharge (whether absolute or conditional), a peace bond or if the charges against you are withdrawn. If you are not convicted, you are not at risk of being inadmissible. Therefore, if you are a permanent resident or a foreign national facing criminal charges and you would like to resolve your matter, it is best to try to negotiate a plea agreement that would not cause you a conviction. (Caution : in the case of foreign nationals, there are other situations that could also cause immigration consequences but they are not covered in this post)

The 2nd Step

The second step of the analysis comes into play if there is a conviction. In that case, you need to check the maximum punishment imposed by law for the criminal offence you are facing. If the maximum punishment imposed by law is 10 years or more of imprisonment, then you are at a risk of being inadmissible. You can find the punishment for every criminal charge in the Criminal Code of Canada which is fully published and regularly updated online (just Google search Criminal Code of Canada). Another situation in which you may also be inadmissible is if you are convicted of a criminal offence, and you are sentenced to a term of imprisonment of more than six months. Therefore, if you are not a Canadian citizen and you are accused of committing crimes in Canada it is very important that you know the maximum punishment for the offence(s) you are facing as well as the sentence that will be imposed on you if you are convicted.

As you can see, if you are not a Canadian citizen, your immigration status is a very important factor to consider when you are facing criminal charges in Canada. If you have a lawyer make sure your lawyer knows about your immigration status if s/he does not ask you for it. And even if you do have a criminal lawyer, it is still recommended that you seek legal advice from an immigration lawyer to know exactly how your criminal charges impact your immigration status. Also, please note that there are other situations where criminal charges could lead to immigration consequences but these would be covered in another post.

Children Are Not Held Criminally Accountable

Tue, 27 Oct 2020 22:23:00 GMT

Young persons are held criminally accountable for their criminal acts. But does this principle also apply to children? Can a child be convicted of criminal offences? The answer is no.

Children under the age of 12 are not held criminally accountable. This legal principal is stated in section 13 of the Criminal Code :

13 No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years.

The YCJA defines child as follows:

The definition of “child” in criminal law is found in section 2 of the Youth Criminal Justice Act ( YCJA ).

child means a person who is or, in the absence of evidence to the contrary, appears to be less than twelve years old.

This definition is to be contrasted with the definition of “young person”, which is defined in the YCJA as follows:

young person means a person who is or, in the absence of evidence to the contrary, appears to be twelve years old or older, but less than eighteen years old and, if the context requires, includes any person who is charged under this Act with having committed an offence while he or she was a young person or who is found guilty of an offence under this Act.

Thus, the age of the person is important in criminal law in order to establish whether or not the person will be held criminally accountable. Young persons can be convicted of crimes and in the YCJA applies to them. The YCJA provides different sentences for young persons than the ones applied for adults and found in the Criminal Code . Youth sentencing is usually more lenient than adult sentencing because the YCJA ‘s main focus is the rehabilitation and reintegration of the young person. However, there are situations where a young person may be sentenced as an adult. In addition, the YCJA does not create different offences for young persons. A young person will still be charged with the same criminal offences that an adult may be charged with. However, the procedure and sentencing of a young person could in many cases be more lenient than that of adults. In addition, when it comes to bail hearings, the onus is always on the Crown in the case of young persons.

When To Call The Police In A Domestic Violence Situation

Sat, 26 Sep 2020 12:00:00 GMT

What Is Domestic Violence

In criminal law, domestic violence refers to situations where there is violence between a person and his/her spouse (husband, wife, girlfriend, boyfriend, etc. …).

911 & Domestic Violence

911 could be a great tool for a person who is living in a domestic violence situation: it provides the victim of the abuse the opportunity to call the police for assistance. This call should and must be made in real and serious situations of domestic violence where there is violence to the victim and or to the children of the couple. In fact, when there are children involved and present during a domestic violence incident, that 911 call should be made. The police will investigate the allegation and may lay criminal charges against your spouse.

An example of what happens after making a domestic violence call to 911...

I called 911 when I was having an argument with my spouse. The police laid charges against my spouse and imposed on him conditions not to communicate with me and not to live with me anymore. I don’t know where my husband is living right now, he is not answering my calls and I need to talk to him regarding the kids. I love my spouse but I was just upset at him in that moment and I wanted him to stop bothering me. I didn’t know things would get that serious and that it will be so difficult for me to speak with him again. I want him back in my life and in my children’s life…

If you have encountered a similar situation, then keep on reading.

What Happens After Calling 911 For A Domestic Dispute?

There are cases of domestic disputes, however, when a person calls the police as a way to punish his/her spouse without really wanting charges to be laid. The problem in these cases is that once the police arrive and investigate the case, they may lay charges against your spouse who will then be facing criminal charges with the potential of having a criminal record if convicted of the crime. In addition, your spouse will have to abide by conditions either imposed by the police or by the court. Those conditions include a condition not to communicate with you in any way directly or indirectly: this includes face to face communication, phone calls, text messages, Twitter messages, Facebook messages, etc. … Your spouse will not be able to communicate with you even if it is to deal with issues related to the children, unless there is an exception that allows him to do. But generally speaking, once you call the police and the police lay charges, it becomes difficult to have things back to normal with your spouse.

What If The Police Lay Charges?

For this reason, it is important to know in advance what could happen once you call 911 and the police do lay charges. If the reason for the call is simply to take revenge against your spouse because you were angry at him/her at the moment, you might want to think twice before you make that call and make your life and that of your spouse more complicated.

If on the other hand there is physical or verbal violence in your household you should make that call. If the abuse is ongoing you should make that call. If you fear for your safety and/or the safety of your children, you should definitely make that call. If however, you just want to make a point to your spouse that you are angry when there is no ongoing violence/abuse and no reason for you to fear for your life, then consider whether you can make your point in a different way without getting yourself and the rest of your family involved in a more serious situation where you now have to go to court.

Use your judgement before you make that call and consider the nature of your relationship. Only you know how bad or serious things are.

Domestic violence is a prevalent problem in our society. Sadly, the pandemic has led to increases in domestic violence cases. It is important to know about this issue if you are living in a household where there is domestic violence or if you are accused of committing a crime in a domestic violence context.

For more information about domestic violence, please see my recent interview, in Arabic, about domestic violence on the link below:

https://www.facebook.com/watch/live/?extid=sftoyEecSwjhpRg8&v=329348041472764&ref=watch_permalink

Exclusion Of Evidence And Production Orders In A Child Pornography Case

Wed, 22 Jul 2020 20:28:00 GMT

Today, the Ontario Court of Appeal (ONCA) released an interesting decision, R . v. West , 2020 ONCA 473, in which it allowed the appellant’s appeal and excluded evidence related to child pornography charges under section 24(2) of the Canadian Charter . The ONCA also acquitted the appellant on all counts.

The Issue At Hand

The issue in this case where the appellant, Steven West, was convicted of accessing, possession of, and distribution of child pornography, is whether his rights under section 8 of the Charter were infringed and if the evidence against him should be excluded. The police in this case obtained a search warrant to search Mr. West’s residence for several electronic devices and documents that contain the child porn evidence they were suspecting.

Information To Obtain

The appellant argued that the production order in this case should not have been issued as the Information To Obtain (ITO) used to obtain the order was predicated on the wrong legal test (par. 18). The ONCA agreed with that argument and explained the law and the legal test for production orders.

R . v. West , 2020 ONCA 473

As the Court in West indicates at par. 20, the general principals governing the issuance of production orders were recently stated in R. v. Vice Media Canada Inc. , 2017 ONCA 231 as follow :

Production Orders

A production order under s. 487.014 of the Criminal Code is a means by which the police can obtain documents, including electronic documents, from individuals who are not under investigation. The section empowers the justice or judge to make a production order if satisfied, by the information placed before her, that there are reasonable grounds to believe that: (i) an offence has been or will be committed; (ii) the document or data is in the person’s possession or control; and (iii) it will afford evidence of the commission of the named offence. If those three conditions exist, the justice or judge can exercise her discretion in favour of granting the production order. [Emphasis added.]

The Issue With The West Case

The problem in the specific case of West , is that the affiant detective clearly misstated the standard throughout his affidavit and did not have the requisite standard based on which an order could have issued. He stated that he had grounds to “suspect” when the correct standard is grounds to “believe” and despite this clear flaw, the issuing justice authorized the production order (paras. 21-22). The trial judge as well did not catch the error and given this clear error, no deference was owed to the trial judge’s decision (paras 23-24). Thus the ONCA considered afresh whether there was a basis on which the production order could have issued and in its analysis reaches the conclusion that it was an error for the issuing justice to issue the order in this case (pars. 24-25). As a result, the warrant could not have issued and thus the search was unreasonable (par. 28).

The Court then applied the Grant test to decide whether or not the evidence should be excluded and in its analysis it reaches the conclusion that it should and interestingly finds that the police was negligent in failing to apply the correct legal standard in his affidavit (par. 33).

What Is Unreasonable Delay And What's Happening With It?

Fri, 17 Jul 2020 14:26:00 GMT

Decision Made Regarding Unreasonable Delays

The Supreme Court of Canada (SCC) just released a decision about the right to be tried within a reasonable time under section 11(b) of the Charter . In R . v. Thanabalasingham , 2020 SCC 18, where the accused was charged with the second degree murder of his spouse, the SCC dismissed the Crown’s appeal and found that the delay between the charge and the anticipated end of trial gave rise to a breach of section 11(b).

Same Principles Apply

The SCC decision in Thanabalasingham is a short one but it is nonetheless important. It confirms the principles that the SCC established in 2016 in the case of Jordan, 2016 SCC 27, and that those principles apply even in a case where the accused is facing serious charges such as second degree murder.

Public Opinion

Following some post Jordan cases, there was some general discord in the public opinion when a case was thrown out simply for delay. Some reaction was that when a case is serious such as when the accused is facing really serious charges and allegedly has committed heinous crimes, the charges should not be just thrown out because of delay. Yet 11( b ) is about being tried within a reasonable time regardless of the nature of the charges the accused is facing. In fact, 11( b ) does not state that a reasonable trial should only be afforded to those facing less serious charges. 11( b ) applies to “[ a]ny person charged with an offence ” and the nature of the offence makes no difference as to the application of this Charter guarantee.

Some important passages of the decision that are worthy of being highlighted are:

[5] There is no doubt that the delay in this case far exceeded the 30-month presumptive ceiling established in Jordan . With respect to this calculation, the Crown urges us to adopt the dissenting reasons of Gagnon J.A. in the Court of Appeal. Applying the principles in Jordan , he found that the net delay was under 35 months. In so concluding, he treated the delay arising from the preliminary hearing as a discrete exceptional event. With respect, we are of the view that he erred in law in coming to this conclusion. The preliminary hearing was not a discrete event, and its length was not outside the Crown’s control in the sense contemplated by Jordan (see Jordan , at paras. 69-70). We say this without endorsing the trial judge’s critical comments regarding the Crown’s exercise of its prosecutorial discretion (see trial reasons, at para. 39 (CanLII)); it was open to the Crown to pursue a charge of first degree murder. That said, as this Court noted in Jordan , “[w]hile the court plays no supervisory role for such decisions, Crown counsel must be alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused’s s. 11 ( b ) right” (para. 79). Had Gagnon J.A. properly accounted for the delay arising from the preliminary hearing, he would have arrived at a net delay of 45 months — well beyond the 30-month presumptive ceiling . [Emphasis added]

[9] Nothing in the foregoing should be taken as a retreat from the message that Jordan sought to convey, or from the principles and policy considerations underlying it. Jordan sought to put an end to an era where interminable delays were tolerated, and to the complacent, “anything goes” culture that had grown up in the criminal justice system. The clear and distinct message in Jordan was that all participants in the system are to take proactive measures at all stages of the trial process to move cases forward and bring accused persons to trial in a timely fashion. Crown counsel is tasked with “making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently” ( Jordan , at para. 138). Defence counsel must be aware that, aside from time legitimately taken to respond to the charges, they “will have directly caused the delay if the court and the Crown are ready to proceed, but [they are] not” ( Jordan , at para. 64; see also para. 65). As we did in both Jordan and Cody , we again emphasize the special role that trial judges — who are charged with curtailing unnecessary delay and changing courtroom culture — must play in this shift ( Cody , at para. 37, citing Jordan , at para. 114). For example, where the defence seeks an adjournment, a court may deny it “on the basis that it would result in unacceptably long delay, even where it would be deductible as defence delay” ( Cody , at para. 37). In sum, practices that were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11 ( b ) of the Charter — a right that inures not just to the benefit of accused persons, but to the benefit of victims and society as a whole as well. [Emphasis added]

COVID-19 Information & Updates

Fri, 26 Jun 2020 16:37:00 GMT

June 26, 2020

The world has changed since March 11th, 2020, and the legal world in particular was put on hold since March 16th, 2020. The pandemic forced courthouses in Ontario to operate at a significantly reduced capacity. Trials and preliminary inquiries have all been suspended and most matters have been adjourned and re-adjourned again for 10 weeks. Only bail hearings and some few minor in custody matters have been proceeding, but all hearings and/or court appearances were done by phone or virtually by video conference. Recently, courts in Ontario have announced their anticipated re-opening date of July 6th, 2020. But what exactly will happen on that date?

A Limited Reopening

The re-opening will be a very limited one. Although we are all awaiting further details about how many individuals will be allowed inside the courthouse at any given time, as well as to what hygiene and health precautions will be installed and what requirements will be expected from individuals attending courthouses, we at least know that a limited number of courtrooms in some courthouses in the province will be open. In addition, the few courtrooms that will be operating will only be running trials and preliminary inquiries. All other matters that have been running, including bail, will continue to run virtually. This means that accused individuals, lawyers, witnesses, sureties will still be expected to either phone in or appear virtually.

In-Person Proceedings

The only types of proceedings where individuals will be expected to attend the courthouse physically starting July 6th, are trials and preliminary inquiries. It is anticipated, however, that the courthouse setting will be different from the pre-Covid time. Although the details are still unavailable, it is quite possible that individuals attending courthouses will be expected to wear masks. There is also supposed to be some measures to allow individuals inside the courthouse to respect social distancing norms.

But what if you have a trial scheduled on or after July 6th and you do not want to attend court for health reasons? What if a witness in your case does not want to attend court for the same reasons?

If you are determined to have your trial (assuming you did not resolve your matter) and you do not want to attend court, one option available is to run your trial virtually. It is actually possible to have zoom trials and if the accused consents, s/he may not attend court physically at all but may join in virtually. The whole trial can run virtually on Zoom. In a recent decision from the Superior Court of Justice, Justice Lemon ruled that the entire trial can run on Zoom. The name of the case in question cannot be revealed due to a publication ban under s. 486.4 of the Criminal Code of Canada , however, the case in question is a sex assault case where there are a few witnesses and the issues at trial are rather simple. You can read Justice Lemon’s ruling in In Re: Court File No. 19/578 2020 ONSC 3870 on the following link : https://www.ontariocourts.ca/scj/decisions/

What does that mean for you if you are charged with a criminal offence and you are expecting to have a trial after July 6th?

So far, your trial is expected to run in person. You, your lawyer, the witnesses and other justice system participants (such as the Crown, Judge and court clerks and reporters) are expected to attend in person. However, know that you also have the option of running your trial entirely on Zoom if you consent to that. As such, one change that resulted from the pandemic is the added option of having criminal trials and many other criminal proceedings run virtually, which is an option that either was not available pre-Covid or was significantly restricted.

One new thing that the criminal world witnessed today is the delivery live on YouTube of the Superior Court decision of Theriault. This too is a significant change because court decisions were not broadcasted live in Canadian Courts. Whether today’s example of a live delivery of a decision will become the norm is yet to be determined.

May 23, 2020

The Ontario Court of Justice (OCJ) issued an updated notice to the profession yesterday. The Court has already announced that it will be extending its closure date to July 6th instead of the previously announced June date. This notice can be found on the following link : https://www.ontariocourts.ca/ocj/covid-19/

But what does that mean for you basically?

If you have a criminal matter and you had a court date scheduled anytime between March 16th and July 3rd, 2020, your matter will be adjourned for 10 weeks. You can find the exact return date in a table on the OCJ website on the above-cited link (again the link is here: https://www.ontariocourts.ca/ocj/covid-19/ )

Only Urgent Matters At The Moment

As it is right now, no trials are proceeding in the OCJ. Only urgent matters such as bails and some in custody matters have been going on but on a remote basis, either by phone or video conferencing. There is still no word as to when and how trials will be proceeding.

Other Limitations

What is also not clear at this point is if courts start reopening to the public, how many people will be allowed inside the court house at any given time? Even though many parts of the country are re-opening, there are still restrictions on the number of people who are allowed to be together at the same place. This of course will be a challenge for courts because any given criminal trial requires the presence of at least 6 individuals : the Judge, a court reporter, a court clerk, a Crown attorney, a defence lawyer and the most important person of course, the accused person. That is at minimum. There is also of course the investigative officer and the witnesses. All these individuals are required for one trial. Yet courthouses typically have multiple trials going on at the same time and on the same day. The issue then will be, how many trials will courthouses be allowed to run on a given day? Will there be a combination of remote trials and in person trials? How will the decision be made? On what basis will some trials be made remotely and others in person?

There are still many questions and not too many clear answers for now. What is clear though is that once the courthouses will re-open, we will be dealing with a completely different landscape. There will probably be a limit as to how many individuals will be allowed inside a courthouse at any given time and many of the proceedings that used to be done in court, will switch to a remote setting.

It is thus very important to keep track of the updates about the court by regularly checking the court’s website.

March 28, 2020

Please take note that the Ontario Court of Justice updated today its protocol regarding COVID-19. You may find the most current version on the following link:

COVID-19 Notices and Information

Message from Chief Justice Maisonneuve re COVID-19 (Updated March 18, 2022) Effective April 4, there will be increased access to in-person proceedings. While the Court can now accommodate more in-person proceedings, it is also committed to continuing the use of … Continue reading

Ontario Court of Justice

If you are currently facing criminal charges, we encourage you to keep an eye on the court’s website for all the latest information.

March 24, 2020

It’s been two weeks since COVID-19 was declared a pandemic by the World Health Organization (March 11th, 2020). That declaration dramatically altered our lives as social distancing is now our new reality. Schools are closed, no more gatherings, sports events are cancelled, many individuals lost their jobs and those who are still working are working remotely or on a reduced capacity. But what about people who are arrested or who are in jail? How does COVID-19 affect their lives and liberties?

As we all know by now, almost every government on the planet is urging their people to practice social distancing as a way to flatten the curve of the spread of the Corona virus. Given that this virus is highly infectious and transmitted by touch or by respiratory droplets produced when an infected person coughs or sneezes it is very important to keep a distance of at least 2 meters from other individuals. As one can imagine this is difficult to comply with when you are living in a jail. Sadly, the jails are packed and do not provide optimal sanitary conditions. There is no soap, no hand sanitizers in jails and it is difficult to isolate each and every inmate in protection of COVID-19. This means that inmates in jails are at a very high risk of getting sick should the virus reach the jails. It is important to remember that many individuals in jail are there on remand, waiting for a trial or a preliminary inquiry and are thus still presumed to be innocent . No matter what you think about a person who is facing a criminal charge, that person is still presumed innocent and is still a human being, who has human rights and should be treated with the respect owed to every human being. Inmates’ health and safety should be considered just like that of any other human being.

Does COVID-19 Have Any Implications On Bail?

The courts are aware of the unusual situation that the planet is going through right now and are taking into account COVID-19 in their determination of release on bail. Many inmates who are facing criminal charges that do not constitute a threat to public safety are being released given the current situation. Thus, some courts have been open to releasing inmates in light of COVID-19 and the risk of exposure to the virus in the jails. The ground on which the release will be done is the tertiary ground. The tertiary ground is one of the grounds on which a court may order a person’s release on bail. In Canadian criminal law, a court can order a person released on one of the three grounds that are listed in section 515(10) of the Criminal Code . The first ground relates to the accused’ attendance at his court appearances, the second ground relates to public safety and finally the tertiary ground relates to the public confidence in the administration of justice. In bail cases in the time of COVID-19, the tertiary ground can tip the scale in favour of release even when the primary and secondary grounds alone would favour detention. This does not mean that bail will necessarily be granted, (after all, if an accused person is considered to constitute a threat to public safety, it is unlikely the person will be released) however, there are better chances, given the current climate of being released on bail.

March 21, 2020

As the situation of our country and that of the world continue to evolve as a result of the COVID-19 pandemic, the level of fear and anxiety has risen dramatically. We are all anxious and worried right now and if you are facing criminal charges, you are dealing with a double uncertainty : the uncertainty of when life will get back to normal and the uncertainty of what will happen to your charge.

Your Rights

In our previous blog post (from yesterday), we indicated how the Ontario Court of Justice has extended its closure until May 29th. This of course causes frustration to many people facing criminal charges because unless your matter is urgent, it will not proceed right now. Not dealing with a pending charge can be extremely stressful. Usually when a person is facing a criminal charge all they want to do is just deal with that charge and know what will happen to it so they can then continue to live their lives. This right now is not an option. If there is, however, some kind of comfort, it is in knowing that all accused persons (except for the in-custody ones) are more or less in the same boat. Most matters are on hold right now and the courts are mostly all operating remotely and at a reduced capacity.

There are, however, some things that you can still do to help your matter:

you can still retain a lawyer to help you deal with your matter: the good news about the courts being closed is that lawyers, just like the rest of the population, should be practising social distancing. Many lawyers are working from home and that means that they have more time to answer your calls. So now is the time to call a lawyer and to retain one. If you need legal representation for a criminal matter, you can call our office at (613) 421-1589 and we will be happy to serve you (remotely)
if you are released and are on conditions, this is the perfect time to make sure that you respect these conditions, if you do not want to add more charges to the ones you are already facing. Know that the police are still charging individuals who commit crimes. Just because there is a current situation going on and things are different, it does not mean that the police are not charging individuals. So if you have conditions that prohibit you from being at a specific address, social distancing is your savior. Stay home and do not breach. We are all now collectively living in some form of house arrest
keep following the latest news about the courts by visiting their websites as their schedules will depend on how the virus situation is evolving
finally, in order to reduce your stress and anxiety, try to do calming things like listening to music, meditating, exercising and connecting virtually with people you love. There are many resources online to keep your spirits up and so many great podcasts you can listen to. Here are some recommendations :
You can heal your life
The mind bodygreen podcast
Then percent happier
On purpose (by Jay Shetty)

If you have questions regarding a criminal matter you are facing in Ontario, do not hesitate to call us at (613) 421-1589. We will be more than happy to serve you and to represent you. Also, you can get in touch with us through our website and send us your questions. We will answer within 24 hours.

March 20, 2020

I hope you are doing well in these crazy times. The world has changed so much in a span of days and it is continuing to change. Nobody knows how long this new reality will last. In addition to the stress related to the Covid-19 situation, you may be experiencing stress and uncertainty regarding a criminal matter that you are facing. Just like with the virus situation that is constantly changing, so is the situation with the courts.

Ontario Court Of Justice

Though the Superior Court of Justice has closed down (for most matters), that wasn’t the case for the Ontario Court of Justice that was still open and operating, albeit on a more reduced capacity. Today, however, the Ontario Court of Justice announced some changes and will be mostly closed until May 29th. You can find the most recent announcement on the Court’s Twitter account or on its website.

Subject To Change

Given that the situation is constantly changing, this announcement is subject to change. So make sure to keep visiting their website or Twitter accounts to keep an eye on the most up to date schedule.

Ontario Court of Justice Twitter post today:

Ontario Court of Justice Website: https://www.ontariocourts.ca/ocj/

Superior Court of Justice Twitter post:

Superior Court of Justice Website: https://www.ontariocourts.ca/scj/

Please visit the above websites frequently for the most recent updates as the posts are subject to change given how fluid the situation still is.

Stay safe and healthy everyone!

Can I Be Charged If I Testify At A Friend’s Trial?

Sat, 07 Mar 2020 22:31:00 GMT

Your friend has a trial and is facing serious criminal charges. You have evidence that could save your friend and you want to help him/her. The only problem though is that your evidence incriminates you. What do you do? Should you or should you not testify at your friend’s trial? Read below for more assistance on this issue.

The legal provisions that apply in this situation are section 5 of the Canada Evidence Act , sections 7 and 13 of the Canadian Charter :

Section 5 Of The Canada Evidence Act States

Incriminating Questions

5 (1) No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.

Answer Not Admissible Against Witness

(2) Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence.

Section 7 Of The Canadian Charter States

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

And Section 13 Of The Charter States That

Incriminating Evidence

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

You Are Protected By The Canadian Constitution

As can be seen from the provisions above, a witness who testifies at a trial and who gives incriminating evidence against him/herself is protected, except in cases where the witness is prosecuted for perjury or for the giving of contradictory evidence. In other words, if your friend begs you to testify at his/her trial and you are afraid that your testimony might end up getting you charged instead, you are protected by law. As can be seen above, the protection is not only provided by a law ( Canada Evidence Act ) but is also enshrined in the Constitution as the Charter is part of the Canadian Constitution .

The only exception to this rule, however, is a perjury prosecution or a prosecution for giving contradictory evidence. So unless you do not fall under these two exceptions, you are protected when you testify. In addition, note that the protection guaranteed by s. 13 of the Charter protects your testimony in any proceedings.

Jury Instructions And Questions In Canada

Tue, 29 Oct 2019 20:31:00 GMT

In a jury trial, the instructions that are given to a jury are crucial in order for a jury to reach a verdict. Instructions are so important that if there are any issues with them, an accused person may appeal the verdict and if successful, have a new trial. This is what happened in the recent Ontario Court of Appeal decision of R . v. Williams , 2019 ONCA 846.

Why Is A Jury Trial Different?

A jury trial is a different type of trial because the verdict of guilty or not guilty is not given by a judge but by 12 citizens or, peers of the accused, the jury. Because members of the jury (jurors) are not judges, but are ordinary individuals selected from the public with no legal training, they must be instructed on the applicable law before they reach a verdict. One of the trial judge’s job in a jury trial is to provide the jury with instructions on the law so they can they can apply the relevant legal principles. This is an important task that the trial judge has to fulfill because as indicated, jurors have no legal training.

A Recent Case

In the recent case of Williams , the trial judge did provide originally appropriate instructions. However, in her submissions, Crown counsel misstated the law on the required intent for murder and that misstatement impacted the jury’s understanding of the law on murder and the required intent for murder. The difficulties that the jury was dealing with became apparent through the questions that the jury had while deliberating.

At paragraphs 39 and 40 of Williams , the Court states:

[39]

Questions by the jury give the clearest possible indication of the particular problem the jury is confronting: R. v. S. (W.D.) , [1994] 3 S.C.R. 521, at p. 528. When the jury submits a question, it must be assumed that the jurors have forgotten the original instructions and will base their subsequent deliberations on the answer to the question: S. (W.D.) , at p. 531. The correctness of the original charge cannot excuse an error in the answer to the jury’s question: S. (W.D.) , at p. 530-31.

[40]

In this case the jury repeatedly received correct instructions in the main charge. But considering everything the jury was told, I conclude there is a real danger that the jury was not left with a proper understanding of the role of recklessness in the mens rea for murder and that subjective foresight of death was required.

Jury Questions

The case of Williams shows the importance of jury instructions and of the questions that the jury asks. Jury questions could be reflective of the issues that the jury is dealing with and also of their understanding of the applicable legal principles.

Alibi Defence In Canada

Tue, 08 Oct 2019 16:09:00 GMT

Have you ever heard the word “alibi” and wondered what it means? The Ontario Court of Appeal has your back as it released yesterday the case of R . v. Bushiri , 2019 ONCA 797, which is specifically on the alibi defence.

What Is An Alibi?

“Alibi” is Latin for “elsewhere”. In criminal law, an accused person charged with a criminal offence, may advance a defence of alibi, meaning that s/he was elsewhere at the time of the crime and therefore could not have committed the crime of which s/he is accused. The alibi defence moves the factual focus from the facts alleged by the Crown to an entirely different factual scenario. But for the alibi defence, the factual scenario introduced by the alibi has no relevance to the Crown’s allegation” (par. 32).

Rules

However, there are rules regarding the use of the defence of alibi. Although the general rule in criminal law is that the Crown has an obligation under the case of Stinchcombe to provide disclosure to the defence of all materials related to the case that are in the possession of the Crown or under the control of the Crown, the defence has no obligation to disclose its defence to the Crown. An accused person is entitled (and actually should ) keep the defence secret and only reveal it at trial, as the trial unfolds. This rule about the defence secrecy, however, does not apply to an alibi defence.

Alibis At Trial

When the defence intends to advance an alibi at trial, the Crown must be notified in advance of the alibi defence in order to allow the Crown an opportunity to investigate the alibi. The reason behind this requirement is to prevent against the risk of fabrication at trial without allowing the Crown an opportunity to effectively challenge the alibi defence. Failure to comply with the requirement of timely disclosure of an alibi may put the defence at risk of having the trial judge make an adverse inference when weighing alibi evidence that is permitted (par. 34). This is exactly what happened in the case of Bushiri . In that case, the defence only notified the Crown of the alibi on the second day of trial. Though the trial judge permitted the alibi, the judge made an adverse inference based on the late disclosure of the alibi.

Dangerous Offenders And Procedural Fairness

Mon, 30 Sep 2019 19:09:00 GMT

Today, the Ontario Court of Appeal (ONCA) released the decision of R . v. Walker , 2019 ONCA 765, which is about a dangerous offender hearing that went wrong. The ONCA explains in this decision what dangerous offender hearings are, their seriousness and the importance of procedural fairness in such serious and sometimes damaging hearings.

This Is A Serious Proceeding

A dangerous offender proceeding is one of the most serious proceedings known to law. It not only asks whether a person should have a label of dangerousness attached to him or her for life, but also whether the person should be at risk of having his or her right to liberty removed for life. The seriousness of such an inquiry to both the individual and to society is beyond dispute (par. 24).

At its core, this case comes down to whether there has been a miscarriage of justice occasioned by failing to put in place sufficient procedural safeguards to ensure a fair proceeding for Ms. Walker (par. 9).

R . v. Walker , 2019 ONCA 765

Ms. Walker was facing serious violent charges, was a self-represented accused with mental, behavioural and cognitive challenges. Though this type of situation makes it more difficult for a judge and the crown to do their jobs, it does not relieve them of their obligation to consider the issue of fitness of the accused, when that issue becomes apparent during the proceedings. Whenever the fitness of an accused person seems to be an issue, it is the obligation of the participants of the judicial system to inquire into that issue. Why is that you may ask? Because it is a fundamental aspect of procedural fairness that an accused be both physically and mentally present at trial (par. 40). In addition, individuals have as much right to be present in mind at proceedings determining their liberty as they have a right to be present in mind at proceeding determining their culpability. The dignity and fairness of our justice system requires that to be so (par. 56). In this case, where Ms. Walker was facing a serious risk of being deprived of her liberty for the rest of her life, it became even more important to ensure that she was fit given the red flags that were clearly putting her fitness into question.

2 Important Issues

The ONCA addresses two important issues in this case:

The failure to adequately explore whether Ms. Walker wished to proceed as a self-represented accused and
He failure to explore her fitness (par. 26).

The Court finds that both issues were not properly addressed in this case and emphasizes the importance of ensuring at each step of a proceeding that these issues are constantly verified and updated. It is not sufficient to assume that just because a self-represented difficult accused person expressed at one point their willingness to represent themselves, that this should be taken as a blanket position throughout the proceedings. The issue should be revisited and especially in situations where it becomes apparent that the accused’s fitness is no longer the same.

New Racial Profiling Case from the Ontario Court of Appeal

Fri, 23 Aug 2019 16:39:00 GMT

The Ontario Court of Appeal released the decision in R . v. Dudhi , 2019 ONCA 665. The decision is about racial profiling, a concept which sadly seems to be recurrent in criminal law.

The Concept Of Racial Profiling

In Dudhi , Justice Paciocco writing for the Court, explains the concept of racial profiling as having two components : (1) an attitudinal component; and (2) a causation component (par. 54 of the decision).

The attitudinal component is the acceptance by a person in authority that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous. The causation component requires that this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivate or influence, to any degree , decisions by persons in authority regarding suspect selection or subject treatment (par. 55).

Race Being A Factor For Arrest

The idea that race must motivate the decision of persons in authority to any degree is important, because this means that if race was a factor in the police officer’s thinking during his police actions, then that would satisfy the causation component even if the officer had reasonable grounds to arrest a person. In the context of the case of Dudhi , the police officer made a racist comment about Mr. Dudhi after he had already formed grounds to arrest him. The argument was being made that given that the racist comment about Mr. Dudhi’s skin colour was made after there was reason to arrest Mr. Dudhi, his racist thinking could not have affected his action and decision to arrest. The Ontario Court of Appeal rejected that argument and indicated that the comment reflected an attitude or belief, and attitudes or beliefs do not come and go in the moment. They are held (par. 78).

Where race is used to any degree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling (par. 63) and racial profiling has two components, an attitudinal component and a causation one.

Twin Myths: What You Need To Know

Thu, 01 Aug 2019 01:28:00 GMT

If you’re facing sexual assault charges, or if you’ve been following recent developments in Canadian Criminal Law, you probably realized that many of the recent criminal cases are sexual assaults cases. You’ve also likely heard about this thing called the “Twin Myths”. What exactly is this concept of Twin Myths?

What Is The Twin Myths Principle?

The Twin Myths is a legal principle that is codified in the Criminal Code of Canada. More specifically, it is found in subsection one of section 276 of the Code. That section stipulates that:

276 (1)

In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.

Not Admissible At Trial

276(1) is the Twin Myths. The Twin Myths is the legal principle that evidence of a complainant’s previous sexual history is NOT admissible at trial if this evidence is introduced to invite a judge or jury to make the inference that by reason of the sexual nature of the activity, the complainant is more likely to consent to the sexual activity in question or that she is less worthy of belief.

In other words, the general rule in Canadian Criminal Law is that an accused person cannot introduce evidence of the complainant’s previous sexual activity if what he is inviting the judge or jury to infer is that because the complainant has consented to sex in the past, then she most likely consented to the sex in the case before the court; or that because she has had sex in the past, she should not be believed and is thus a less credible witness.

Purpose Of This Rule

The purpose of this rule is, among other things, to protect the reputation and dignity of complainants of sexual assaults and to encourage those complainants to report sexual assaults. This rule was developed in attempt to stop the stigma and myths surrounding complainants in sex assault cases. In other words, an accused person cannot introduce at trial evidence that a complainant had sex with him or with another person on a previous occasion and because of that previous sexual activity she most likely consented to the sex in the present case. This reasoning is prohibited by the law as it is generally considered to be irrelevant to the issues at trial. You cannot therefore, in a criminal trial try to make the argument to a judge or jury that because the complainant had sex with you before or with other men, that she most likely consented to the alleged sexual activity.

The second part of the myth protects the complainant from the stereotype that because the complainant is someone who is sexually active and who has had sex, then she is less worthy of belief. In other words the law prohibits an accused of producing evidence of the previous sexual activity of a complainant in order to show that because she has already had sex, she’s basically a slut and her evidence should not believed.

Exceptions To The Rule

Though the Twin Myths is the rule and generally prohibits the introduction at trial of a complainant’s previous sexual activity, there are exceptions to the rule and they are stated in subsections two and three of section 276. Basically, an accused person can bring an application to introduce into evidence the previous sexual activity of a complainant but only under certain conditions including that the evidence is not being introduced for the purpose of supporting a Twin Myth inference and if that evidence is relevant to an issue at trial. There are other requirements that need to be fulfilled and are stated in section 276, and if those requirements are met, then the previous sexual activity of the complainant may be introduced in a sex assault trial. Note however that in order for this evidence to be introduced, there is a special procedure that must be followed and that procedure includes a written application and, if that application is granted, then the proceeding moves into a voir dire.

Recent Changes

The law on sex assaults has recently changed by adding more conditions and by providing the possibility for a complainant to participate in the proceeding and to retain her own lawyer. Those changes are reflected in the recent amendments to the Code. In addition, the Supreme Court of Canada released this year three important decisions on sexual assaults and on the Twin Myths, the most recent of those decisions was released just today.

Those decisions are the following:

In all three of these decisions, the Supreme Court emphasized on the importance of protecting the dignity and integrity of complainants in sex assault trials and on the fact that previous sexual history is as a general rule irrelevant and forbidden in a trial.

Why It's Important To Save Your Evidence

Fri, 05 Jul 2019 23:23:00 GMT

Have you ever been in a situation where you were facing criminal charges, the allegations against you are false, there are messages or videos that prove your side of the story but you do not have these messages anymore because you deleted them? If so, then keep on reading to see why it’s important to save your messages.

It's A Game Changer

Let’s say you are facing the criminal charge of uttering threats. You speak to a lawyer and you explain to your lawyer that the allegations are false and that it was actually the complainant who sent you threats by text or voice messages. Your lawyer believes your story and asks you to show him/her those messages. You start to sweat and to panic because you do not have them anymore… You actually deleted them! Sadly, it is not uncommon for people to delete messages in the heat of the moment. What people do not realize though is that those messages that were just erased are actually evidence the person can use to either defend themselves at a trial or to negotiate with the Crown attorney a resolution offer.

How It Can Change Things For You

But why does it matter if you have those messages, if you are explaining your story to your lawyer and your lawyer believes you? The problem is if you are facing criminal charges, it’s because somebody (usually the complainant) told the police a different side of the story and one which was convincing enough for the police to lay charges against you. Moreover, that person may also have shown the police evidence that confirms their side of the story. In that case, your word alone may not be enough to fight the charges against you. As compelling as your story may be, it will gain much more strength if it is supported by objective evidence. In other words, for your word to be more convincing, you need some kind of evidence to back it up. The most common type of evidence these days happens to be text/video messages. These messages often contain important information that could help you in your defense against criminal charges and if you lose these messages, it will be more difficult to defend your case especially in a situation where the allegations are based on words exchanged between you and the complainant.

For the reasons cited above it is important to save all of your messages, video and audio communications because you never know when you will need them. If you deleted the messages, you may still be able to retrieve them through the services of data recovery companies. One such company that offers data recover services in Ottawa is HDD Recovery Services.

For more information about their services, please visit their website on the following link : https://www.hddrecovery.ca/

Drunk driver Marco Muzzo, who killed 3 kids and their grandfather, denied day and full parole

Wed, 07 Nov 2018 18:04:00 GMT

GRAVENHURST, ONT.—Convicted drunk driver Marco Muzzo — who in 2015 crashed into a minivan north of Toronto killing three children and their grandfather — has been denied parole at his first opportunity.

At his parole hearing Wednesday, Muzzo, 32, asked the board for release on day parole. He pleaded guilty in court in 2016 to several counts of impaired driving causing death and bodily harm for the 2015 crash that killed 65-year-old Gary Neville and his three grandchildren, Daniel Neville-Lake, 9, Harrison, 5, and Milagros, 2. The children’s grandmother and great-grandmother were also seriously injured when Muzzo’s SUV slammed into the family’s minivan.

For the full article, please visit the following link : https://www.thestar.com/news/gta/2018/11/07/convicted-drunk-driver-marco-muzzo-who-killed-3-kids-and-their-grandfather-set-for-parole-hearing-today.html

Brandon Smeltzer: ‘I did the crime, I'll do the time’

Sun, 21 Oct 2018 10:26:00 GMT

CORNWALL, Ont. — Making his first court appearance in the death of his former girlfriend, Brandon Smeltzer declined his right to an attorney and declared himself “guilty” in a Cornwall courtroom Friday morning.

This article from the Ottawa Citizen about an incident that happened last Friday in the Cornwall courthouse shows yet again the importance of at least consulting a lawyer when you are facing criminal charges. Especially when the charges are as serious as the ones in this case, it becomes even more important to obtain legal advice in order to understand the situation you are facing.

Even if you think you know how you want your matter to proceed, there is still a process that needs to be followed and you must be wary of it, understand it and know how it works. Legal advice from a lawyer will at least help you understand the way the system works and may also make you really decide whether you want to proceed the way you think you want. Do not be impulsive and reactive when it comes to legal proceedings and make sure you have legal advice before you make any decision.

You can read the full article here : https://ottawacitizen.com/news/local-news/man-accused-of-killing-alexandria-woman-tells-court-i-did-the-crime-ill-do-the-time

Your Legal Rights In Canada

Wed, 01 Aug 2018 01:44:00 GMT

We’ve all seen in American movies or on shows like Law and Order that when a person gets arrested, the police tell them something about them having the right to remain silent and other things as well. That thing that police say is called in the US Miranda rights. In Canada, we do not have Miranda rights but we have something similar. We call them Legal Rights.

What Are Those Legal Rights And Why Should You Care About Them?

The Legal Rights are rights that are guaranteed by the Canadian Charter of Rights and Freedoms . More specifically, the Legal Rights are found at sections 7 to 14 of the Charter. If you read the rights that are found in those sections, you will realize that these are rights that apply in the criminal law context during the interaction of an individual with a state representative, often in the form of a police officer.

Why You Have These Rights

The purpose of the Legal Rights is to protect individuals in their dealings with state agents who are more powerful, more resourceful and who usually have more information about individuals than the individuals themselves. The Legal Rights seek to establish a balance between the power of the state and the individual by guaranteeing rights such as the right to silence (when questioned by the police), the right to be protected against unreasonable searches and seizures, the right to be protected from arbitrary detentions, etc., …

When Do These Rights Apply

Given that the Legal Rights apply during your interactions with state agents (police officers) it is important for you to know the nature of these rights by reading and getting familiar with the text of sections 7 to 14 of the Charter. You should at least know about these rights so that if ever you are in a situation dealing with a police officer and that officer violates your right, you should bring to your lawyer’s attention the fact that the officer violated your Charter right. If there is indeed a violation of any one of your Legal Rights, you may have a remedy under the Charter and the most common remedy is the exclusion of the evidence that the police obtained against you through their interaction with you under section 24(2) of the Charter.

In some criminal law cases, the entire defence relies on a Charter argument, where the only argument your defence lawyer will make is one based on a Charter violation where the exclusion of evidence is the ultimate remedy sought. This often happens in impaired driving cases and in drug cases. So if you are facing an impaired driving or drug charge, take notes of and remember your interaction with the police before the charge was laid (and sometimes even after the charge was laid). Take good notes and tell your lawyer about what happened. You may have a Charter argument that could make you win the case.

Diversion: What You Need To Know

Mon, 18 Jun 2018 22:24:00 GMT

You are facing a criminal charge. It’s a nightmare. You don’t want to go to trial as this is an expensive and lengthy option and there is no guarantee of winning. But you also do not want to plead guilty. You feel stuck and you don’t know what to do. In some cases, there could be a third option. This third option is rare but if available, it could be a very good solution to deal with the nightmare of facing a criminal charge. This third option is called “diversion”.

What is Diversion?

Diversion occurs when the Crown diverts the charge against you out of the criminal justice system: instead of dealing with your charge through the court process, the Crown will ask you to do some kind of contribution to society such as community service, a donation to charity, or to join a certain program. Once you’ve completed the diversion program as required, the charge against you will be “withdrawn” and you will not have a criminal record.

Why is it not always an option?

The reason why diversion is not always an option in criminal matters is because it is up to the Crown to decide whether or not your matter will be diverted (not your defence lawyer) and which diversion format you should be doing. Also, diversion is available in cases where the charge you are facing is a minor one such as mischief, fraud under, theft under, etc . If you have a criminal record, it is unlikely that the Crown will want to offer you diversion.

When it is an option...

If however, diversion is an option in your case, the charge will not be withdrawn until you have fully completed the diversion program requested by the Crown.

Eligibility

It is also important for you to understand that in order for you to be accepted into a diversion program, you must be willing to accept responsibility for the wrong doing that occurred in the case. Diversion is not the same thing as pleading guilty, you will not be found guilty of an offence and you will not be sentenced, but you still need to take responsibility for the wrong that happened. Taking responsibility and showing responsible behaviour and acknowledging that some wrongdoing was made is not the same thing as admitting guilt.

If you refuse to take responsibility for the wrongdoing that occurred, you cannot be accepted into the diversion program.

Social Worker Interview

A social worker will interview you for the intake interview and will want to check a few things including whether you understand that what happened is wrong, you appreciate the costs to society of your actions, you have learnt your lesson.

The discussions you have with the social worker for diversion purposes are confidential and cannot be used against in court in criminal proceedings. So be frank and honest with the social worker who is interviewing you as ultimately, it is in your interest that the charge against you be diverted.

Becoming Eligible

Once you are eligible for diversion, your matter will be adjourned for a period of typically 3 to 4 weeks to complete the diversion requirement. Once the diversion program is successfully completed, you will return to court with a proof of completion of the diversion program and the charge against you will be withdrawn.

If the diversion format prescribed by the Crown is community service, you should try to to start your community service as soon as possible, because the sooner you’re finished, the sooner your charge(s) will be stayed or withdrawn.

Mandatory Minimum Sentences

Thu, 10 May 2018 17:09:00 GMT

What Is A Mandatory Minimum?

For some criminal offences, there is a mandatory minimum sentence that is prescribed by law. This means that if a person is found guilty and is convicted of the offence for which a mandatory minimum is prescribed, the mandatory minimum sentence will apply automatically. In other words, the person who will be sentenced will at least be sentenced to whatever mandatory minimum sentence is prescribed by law and depending on the facts of the case, the sentence could be harsher. But the sentence will not be lower than the mandatory minimum sentence prescribed.

Impaired Driving

In impaired driving cases for example, a person who is convicted for impaired driving for the first time will have to pay a fine in the amount of at least $1,000. This is prescribed by s. 255(1)(a)(i) of the Criminal Code of Canada . The fine may be higher than the mandatory minimum sentence but it cannot be less than $1,000. Once convicted, that mandatory minimum sentence applies automatically. There is no way around it.

Other Offences

Mandatory minimum sentences are not just prescribed in the context of impaired driving. There are other offences that carry with them mandatory minimum sentences and some of these offences are found in statutes other than the Criminal Code , such as the Controlled Drugs and Substances Act .

Challenging Mandatory Minimums

For the past few years, defence lawyers have been challenging mandatory minimum sentences as unconstitutional on the basis of constituting cruel and unusual punishment. The logic behind this argument is that mandatory minimum sentences constitute cruel punishment because regardless of the facts of the case and regardless of the severity of the crime people convicted of an offence will be sentenced to a specific sentence even if in their particular case that sentence is too harsh. So for example, to take the case of impaired driving, if you are convicted for the first time in your life for impaired driving and you do not have a criminal record and your readings were above the legal limit but not much higher, you will still have to pay a fine of $1,000 at least, whether or not you can pay the fine, just like another driver who was convicted for the first time and who had much higher readings and who can afford to pay the fine.

The Ontario Court of Appeal released a sentence appeal decision today on the issue of mandatory minimum sentences in the context of a drug case. The case is R . v. Vu , 2018 ONCA 436. You can find the decision on the following link: http://www.ontariocourts.ca/decisions_index/new_releases.htm

Bill C-75

Tue, 03 Apr 2018 22:58:00 GMT

About The New Bill

Last week, the Federal Government revealed Bill C-75. This new Bill proposes to bring significant changes to the Criminal Law. Among the changes that have been widely spoken about are the elimination of peremptory challenges in jury trials and new and stricter measures in domestic violence cases.

Mixed Reactions

This new Bill is creating mixed reactions among lawyers and legal academics. Some lawyers fear that the abolition of peremptory challenges in jury trials will actually cause more injustice to racialized accused persons in the future.

Why The Mixed Reaction?

A peremptory challenge is the ability for a lawyer, Crown or Defence, to challenge a prospective juror from being a member of the jury based only on that lawyer’s impression of that prospective juror. No cause or justification is given as to why the lawyer is challenging a particular juror.

Domestic Violence

Other changes brought by Bill C-75 are harsher measure in domestic violence cases: the onus in bail hearings in domestic violence cases will be reversed for repeat offenders. This means that it will be up to the accused person to convince a judge or a justice why he should be released on bail.

Though Bill C-75 has only been out for a few days, it is already the subject of much debate and heated discussions, but it is certainly one issue to follow closely in the legal news.

The full text of the bill can be found on this link:

http://www.parl.ca/DocumentViewer/en/42-1/bill/C-75/first-reading

The Confessions Rule

Sun, 22 Oct 2017 23:11:00 GMT

What Is The Confessions Rule?

“The Confessions Rule”. A legal term or expression that sounds scary and complicated, but in fact it is a simple rule that is important for you to understand as it applies in your interactions with state authorities.

The Confessions Rule is a common law rule that requires that a statement made by a person to a person in a position of authority be made voluntarily if that statement is to be admitted at trial. In other words, if you say something to a person in authority and the Crown wants to rely on this statement at your trial, the Crown will have to prove that you made that statement voluntarily.

Why Does This Rule Matter?

Usually, in the criminal law context, when a person is dealing with state authorities (typically the police), it is the rights protected under the Charter that are invoked. However, Charter rights only apply upon detention or arrest. So in order to trigger a Charter right and to invoke a Charter protection, there has to be first a situation of detention or arrest by the police. Moreover, the onus is on the person claiming a Charter violation to prove on a balance of probabilities that the Charter rights have been violated. In other words, if you want to claim that the police have violated your Charter rights, you bear the onus of proving a violation and you can only invoke Charter rights if you can show that you were detained or arrested.

Voluntariness is established if:

The person making the statement has an operating mind;
The statement has not been obtained by threats or inducements;
The statement must not have been made in circumstances so oppressive that they vitiate the statement’s voluntariness;
The statement must not be the product of unacceptable police tactics or trickery.

The Crown bears the onus of proving voluntariness beyond a reasonable doubt.

When Does The Confession Rule Apply?

The Confessions Rule on the other hand, applies whether or not you were detained. So this means you do not have to worry about the technicality of proving a detention in order to establish the voluntariness of a statement made to the police. Moreover, the onus is on the Crown to prove beyond a reasonable doubt, and not on a balance of probabilities, that your statement to the police was voluntary.

Finally, another advantage of the Confessions Rule, is that once a statement is proven to be voluntary, it must be excluded. Under the Charter , a request for the exclusion of a statement made to the police, will only be excluded if the court considers that admitting the statement would bring the administration of justice into disrepute. This means that the court has the discretion to either admit or exclude a statement made to the police once a Charter violation has been established.

Changes To The Ottawa Criminal Courts

Sun, 10 Sep 2017 01:31:00 GMT

September is bringing important changes to the Ottawa criminal court system. A new bail court and new bail system as well as some new additions are among some of the new changes to look for this month.

If you are familiar with the Ottawa Ontario Court of Justice, you will probably have to get reacquainted with this court as some changes have and are about to happen.

What's Changing?

Since September 5th, the main bail court is no longer courtroom number 6 but courtroom number 3. Though this change is more of an administrative nature, a more major change is happening in the bail system itself: justices will no longer be presiding over bail hearings but judges will assume that role from now on.

Traditionally in Ottawa, justices presided over bail hearings. Unlike a judge, a justice does not have to have a legal background. This means that a justice is not necessarily someone who was a lawyer before, and it is common that a justice does not even have a law degree. The law allows, however, for a justice to hear a bail hearing.

Criminal Justice System

Due to the issues that were being raised with regards to the criminal justice system, such as the delays in having trials, the overcrowding of the jails and the horrible conditions in which inmates are living in remand centers, there was a mounting pressure to bring changes to the criminal justice system. One such change is that judges will from now on be sitting in bail courts and presiding over bail hearings in the hope that this will allow the proceedings to be more efficient and faster and ultimately will lead to more fairness to accused individuals. Having judges preside over bail hearings will allow the parties to have early on in the proceedings the input of a judge, who is experienced and trained in the law. A judge at the bail stage will be in a position to guide the parties from the onset on how things should proceed efficiently.

Indigenous Peoples Court

Another major change to look for this month will be the official start of an Indigenous peoples court. This is a long time coming as in some other areas in Ontario, there are already such courts that deal with the particular circumstances and issues that Indigenous peoples go through. The opening ceremony for this court took place at the end of the month of August.

These are some of the major changes happening this month in the Ottawa courthouse.

Search Warrants In Ontario: What You Need To Know

Sat, 15 Jul 2017 11:00:00 GMT

Obtaining A Search Warrant

How fresh should the Information To Obtain (ITO) a search warrant be, for a warrant to be validly issued?

Generally speaking, before the police can search a place (whether it is a vehicle, house, office, etc. …) they need to obtain a search warrant. A search warrant is a document signed by a justice authorizing the police to search a place. In order for a justice to issue a search warrant, a police officer must provide information in and ITO explaining why the warrant should be issued and asking the justice to authorize the search of a specific place. The information in the ITO should allow the justice to form reasonable grounds to believe that the evidence that the police are looking for is in the place in question.

Example: R v. James

Mr. James challenged the ITO on the basis that the information in the ITO was too stale to support the belief that there were reasonable grounds to believe that drugs will be found in his vehicle on the day the warrant was issued. The trial judge agreed with Mr. James’ position and exercised his discretion to exclude the evidence under s. 24(2) of the Charter to exclude the evidence obtained by the police. The majority of the Court of Appeal upheld the trial judge’s decision. Justice Nordheimer from the Ontario Court of Appeal, however, dissented.

Can You Challenge A Search Warrant?

This section will cover...

What is a search warrant?
What is an information to obtain?
And is it legal for the police to enter a place and search it?
Is there a way that search can be challenged?

This post provides general and basic information about the subject of search warrants.

Unreasonable Search

Section 8 of the Canadian Charter of Rights and Freedoms provides protection against unreasonable search or seizure. This is a constitutional right that protects individuals against state intrusion into their privacy in order to search for evidence. In other words, the police are allowed to enter places and to search for evidence; however, they are allowed to do so if the search is legal. Otherwise they will be violating a person’s privacy right to be protected against an unreasonable search.

Reasonable Search

One way in which a search could be considered reasonable is if it is made pursuant to a search warrant. A search warrant is a judicial pre-authorization for the police to enter a place in order to search it for evidence and sometimes to seize that evidence. In order to obtain a search warrant, usually a police officer will give information under oath that s/he has reasons to believe that an offence has been committed and that evidence will be found at the place to be searched.

Information To Obtain

The information in which the officer states the reasons or grounds to believe that there is evidence at the place to be searched, thus justifying the search, is called an Information To Obtain (ITO). A justice then reads the ITO containing the sworn information and if the justice is convinced that there are reasonable grounds to believe that evidence will be found, based on the information contained in the ITO, a warrant will issue allowing the search.

Is it easy to obtain a search warrant?

The standard to obtain a search warrant is pretty low which makes it difficult to challenge a search warrant once it has been issued. It is possible, however, to challenge the validity of a search warrant. For that, a reviewing judge, will have to reviwe the ITO and determine whether the warrant should have issued, not whether it could have issued. In order to do so, the reviewing judge will have to apply three criteria that were stated by the Supreme Court of Canada (SCC) in the case of R . v. Debot , [1989] 2 S.C.R. 1140.

The three criteria in Debot according to which a warrant is validly issued are that the information contained in the ITO, based on which the warrant was issued, is:

(1) Credible

The source of the information in the ITO has to be credible. If the source of the information contained in the ITO is a confidential informant, the informant has to be someone who is believable in order to be considered credible. Some factors that increase the credibility of the informant are the fact that s/he does not have a criminal record, whether the informant has already provided similar type of information to the police in the past and that information led to search warrants.

(2) Compelling

The information provided in the ITO has to be compelling. Factors that make the information in the ITO compelling are the specificity of the information, the level of details it contains, whether it is biographical information or whether it is information that would not be readily available.

(3) Corroborated

In cases where the information in the ITO comes from an informant, before the police request a search warrant based on that information, they have to make efforts to corroborate the information provided by the informant. What this means is that the police cannot simply rely on what the informant tells them about the fact that there is evidence contained in a place, the police need to gather evidence that supports and confirms the information provided by the informant.

All three of the above-cited factors must be present in order for a warrant to issue. However, strengths in one of the factors can compensate for weaknesses in others. So if for example the information in an ITO is somewhat compelling but very credible and strongly corroborated, then a warrant can still issue despite the fact that it is not very compelling.

If a search warrant is successfully challenged, then the resulting search is unreasonable and the evidence obtained pursuant to the search may be excluded under section 24(2) of the Charter .

What Is A Section 810 Peace Bond?

Wed, 03 May 2017 13:00:00 GMT

You may have heard about an 810 peace bond in the context of resolving a criminal matter. You may also have thought that an 810 peace bond is the same thing as pleading guilty to a criminal charge. An 810 peace bond is in fact different and distinct from a guilty plea.

So what is a section 810 peace bond?

A peace bond is an order from the court to keep the peace and be on good behavior for a period of time and to follow the conditions contained within the peace bond.

There are two types of peace bonds

a common law peace bond , which a judge can order from his/her own initiative; and
a section 810 peace bond .

The peace bond that we will be focusing on in this blog is the latter, i.e. , the 810 peace bond.

More about the Section 810 Peace Bond

Like any peace bond, an 810 peace bond is a court order to keep the peace and be on good behavior for a period of time and to follow the conditions contained within the peace bond. The maximum time period possible for an 810 peace bond is prescribed in section 810 of the Criminal Code of Canada and that maximum period is of 12 months. However, an 810 peace bond may be of a duration of less than 12 months.

When can it be ordered?

An 810 peace bond can be ordered when the court fears on reasonable grounds that a person:

will cause personal injury to another person or to his/her spouse or common law partner or child or will damage his/her property; or
will commit an offence under section 162.1 (publication of an intimate image without consent).

It's ordered as a preventative measure

So if a court has reasonable grounds to believe that harm can be done to a person, the court may order a peace bond under s. 810 of the Criminal Code of Canada with the condition to keep the peace and be on good behavior and other conditions. Thus, an 810 peace bond is ordered as a preventive measure against future harm to a person and is not ordered as punishment. As a matter of fact, unlike a guilty plea, there is no finding of guilt, and no plea of guilty for a court to order an 810 peace bond. This means that you will not have to admit that you have committed the offence with which you are charged, and you will not have to plead guilty to the offence. No conviction will be entered against you and this explains why an 810 peace bond is usually a more desirable outcome to resolve a criminal matter as opposed to pleading pleading guilty: there will be no conviction entered against you.

Will I have a criminal record?

No conviction registered against you means that you will not have a criminal record. This is of course a huge advantage as you will not have to worry about the impact of a criminal record on your future employment opportunities. Moreover, if you are not a Canadian citizen, usually a peace bond will not result in immigration consequences.

But be aware...

Beware, however, that an 810 peace bond will appear on police records (CPIC) for the duration of the peace bond (which is typically for 12 months), and in some instances of criminal check for employment or US customs purposes an 810 peace bond may show up as well. If you have been fingerprinted for an assault or uttering threats charge, and the charges were later stayed, dismissed, withdrawn, peace bonded, absolute or conditionally discharged, it WILL still show up on a criminal check in the future. For that reason, it may be prudent for you to obtain information about file destruction to ensure that the police have destroyed all information they have in relation to the criminal charge.

Other areas it may impact

You may also want to consult a family lawyer to determine whether a peace bond will have consequences on any family issue that you are dealing with.

At the end of the duration of the peace bond, usually the charge is withdrawn. Of course this is assuming that you have complied with all the conditions of the peace bond and did not breach them.

Celebrating 35 Years Of The Charter

Thu, 20 Apr 2017 04:13:00 GMT

This year marks the 35th anniversary of the Canadian Charter of Rights and Freedoms a document we Canadians should be proud of and should be happy to celebrate. This blog will give you one reason why you should actually care about the Charter and be happy to celebrate it.

If you in any way are interested in comparative law, you will realize that despite the differences between countries in terms of culture and language, their laws are actually rather similar: in almost every country, you will find property laws, family laws, laws that protect contracts or laws that protect your assets or your land. There are even laws in almost every country in the world that protect your property and your right to property even after you die. And although these various laws and the rights that they protect are certainly important and deserving of protection at law, they are, however, meaningless and devoid of value if your most fundamental rights as human beings are not recognized. Fundamental rights are rights such as the right to life, liberty and security of the person, freedom of expression and religion and other such rights.

Think about this for a moment: what is the point of defending or protecting your land, or your right to land or in a contract if you do not have the right to life or if you do not have the right to liberty or the security of your person. What is the point of all these property and contract laws if you, as a human being, are not protected and your fundamental rights are not guaranteed?

Yet not many countries have laws that recognize those fundamental human rights and countries that do have such laws do not necessarily enforce them. But in Canada, not only do we recognize fundamental human rights, we also acknowledge that they are supreme and we do so by giving them the utmost respect and privilege by enshrining them in our Constitution in the text of the Canadian Charter of Rights and Freedoms .

For this reason, we should be proud to have a Charter of rights and we should celebrate it every year.

New Bill To Legalize Marijuana

Sun, 16 Apr 2017 02:26:00 GMT

On Thursday April 13th, 2017, the Liberals introduced a Bill on the legalization of marijuana. This Bill will have several consequences and among them, changes to the law on drug-impaired driving.

What the bill changes

The introduction of the Bill on the legalization of marijuana will have consequences on several different aspects. From a medical point of view, it will allow individuals who need marijuana for medical purposes to purchase the drug legally. It will also allow other individuals to possess the drug legally for recreational purposes.

How it changes from a criminal law perspective

But from a criminal law perspective, it seems like there will be major changes to the law on drug-impaired driving in Canada. Under the proposed new Bill, new drug-related offences will be created and police will likely have increased powers to arrest drivers they suspect to be driving with drugs in their system. The proposed Bill seems to make the law on impaired driving even tougher.

Is the bill official?

The Bill is still not the official law in Canada as it still has to be passed. Yet it is already causing serious debate and controversy in the legal community. As such, this is currently a hot topic in Canadian Law that will be followed closely.

What Is An Aggravating Factor?

Mon, 27 Mar 2017 01:52:00 GMT

By definition “aggravating” means to make something worse. In the context of criminal law, there are certain factors that can make an offence worse.

More serious charges

This means that an offence by itself may be bad enough, yet in the presence of certain factors called aggravating factors, the offence may be considered to be worse and therefore worthy of a harsher sentence. Below, are two common contexts in which you may encounter an aggravating factor.

Driving over 80

In cases where you are charged with driving a motor vehicle with a blood alcohol level above the legal limit, you have already committed the offence of over 80. However, if your blood alcohol level exceeds 160, then your reading is aggravating and as such, the sentence imposed may be harsher because of that high reading. In other words, a blood alcohol level above the legal limit but that is below 160 will warrant a certain sentence or punishment. But if your blood alcohol level equals or exceeds 160, then you are in the aggravating range and a judge may impose an even harsher sentence because of the high reading.

Domestic violence

The fact that an offence occurs within the context of domestic violence is aggravating. For example, an assault on a spouse or on an intimate partner is an assault that occurs in the context of a domestic relationship. Because of the domestic nature of the assault, the sentence imposed may be harsher to account for the fact that the assault took place on a person with whom the accused has a close, intimate and trusting relationship.

It is important to be aware of the fact that some factors may be aggravating as they might go to sentencing and justify a harsher sentence. For that reason, pay attention in the facts of your case as to whether or not there are aggravating factors. If there are such factors, then know that they might explain why the Crown is asking for a harsher punishment on a guilty plea or why a judge might impose a harsher sentence in your case.

What Is Hearsay?

Fri, 25 Nov 2016 00:58:00 GMT

A word commonly heard in the context of a criminal trial is the word “hearsay”. In criminal evidence, hearsay evidence is in principle inadmissible.

What is hearsay?

An out of court statement, whether it be oral or written, that is tendered at trial for the truth of its content is considered hearsay and is not generally admissible in evidence. What this means is that for an out of court statement to be admissible as evidence at trial for the truth of its content, the person who made that statement must testify at trial and adopt that out of court statement. So for example, if a person said something outside of court, the content of that statement cannot be admitted at trial as true unless the person who made that out of court statement testifies at trial and acknowledges that statement.

Is it possible for an out of court statement to be used as evidence?

But like any rule, the rule against hearsay has some exceptions. The leading case about hearsay is the case of R . v. Khelawon , [2006] 2 S.C.R. 787 ( Khelawon ), from the Supreme Court of Canada. In Khelawon the Supreme Court clarified the law on hearsay especially as it pertains to the exceptions to hearsay.

Recently, the Ontario Court of Appeal addressed the issue of hearsay in the case of R . v. Cesar , 2016 ONCA 890 .

What You Need To Know About Joint Submissions

Sun, 16 Oct 2016 01:57:00 GMT

What is a joint submission?

At the sentencing phase, defence counsel will make submissions before a judge regarding a sentence. The lawyer acting on behalf of the Crown Attorney will also make submissions on sentencing and usually will ask the court for a different sentence.

What happens if you plead guilty?

Usually when an accused person pleads guilty to the offences charged, Crown and defence counsel will agree on a sentence and will thus make what is called a “joint submission” before the judge. In other words, both Crown and defence will ask the court for the same sentence.

Can a judge reject a joint submission?

Although judges tend to agree with and grant the sentence requested on a joint submission, they are not, however, bound by the joint submission. Judges may depart from the sentence recommended on a joint submission if the recommended sentence is either too lenient or too harsh.

In the recent case of R. v. Anthony‑Cook – 2016 SCC 43 , the Supreme Court of Canada revisited the law on joint submissions and clarified the legal test that judges should apply to decide whether or not to depart from a joint submission. The case of Anthony-Cook makes it in effect more difficult for judges to depart from a joint submission.