Report laments legal aid snag

Report laments legal aid snag

Most cases go to junior defence lawyers who lack experience, creating 'vicious circle,' authors find

Nov 29, 2008 04:30 AM

Tracey Tyler
Betsy Powell
Toronto Star

The defence of people charged in some of Ontario's biggest criminal cases – as well as millions in public money – is being placed in the hands of unseasoned junior lawyers, some with less than four years experience, a new report says.

More than half of all legal aid certificates issued in complex criminal cases are going to lawyers who have been practising fewer than ten years and lack the judgment needed to conduct trials in a focused manner, according to the report.

The report was released yesterday at a Queen's Park news conference by Attorney General Chris Bentley. It's aimed at moving large cases through the justice system faster and avoiding the fate of a recent corruption trial involving Toronto police officers, which collapsed this year after a decade in the courts.

Bentley was joined by the report's authors, Patrick Lesage, a former chief justice, an
Michael Code, a University of Toronto law professor who once served as assistant deputy attorney general.

After combing through data from the files of Legal Aid Ontario, Lesage and Code found approximately 28 per cent of defence work in big cases funded by legal aid is performed by lawyers with less than four years experience.

At the same time, the legal aid plan is attracting fewer and fewer senior lawyers. Most are unwilling to commit themselves for months or years to cases at rates that don't cover their overhead. The top rate is about $92 an hour.

"We appear to be trapped in a vicious circle: the longer criminal trials become, the less likely it is that leading counsel will agree to conduct them on a Legal Aid certificate; and yet having leading counsel conduct the defence in these cases is one of the solutions to the overly long trial," Code and Lesage write.

Among their 41 recommendations is a call for "enhanced fees" in complex cases, using criteria so restrictive that only "the most able counsel" qualify. Frank Addario, president of the Criminal Lawyers' Association, applauded the general principle of enhanced tariffs, arguing that paying more to lawyers will prove "revenue-neutral."

"What's paid out will be recouped over and over by savings on everything else that drives up the cost of complex cases," he said.

But while Bentley said both he and Premier Dalton McGuinty are determined to have "a faster, more effective criminal justice system," he made no promises yesterday beyond a vague pledge to get legal aid to "a better place." He's focused his attention on less expensive changes, including moving Crown attorneys into police stations to advise police in the early stages of a case.

Doing so, said Bentley, addresses a recommendation by Lesage and Code that police and prosecutors work more collaboratively on issues, including the disclosure of evidence to defence lawyers.

That was one of the troubling areas cited by a judge in the police corruption case that precipitated the report. In staying charges against six drug-squad officers, Justice Ian Nordheimer quoted a letter from RCMP Chief Superintendent John Neily, imploring the Crown to help manage the mountain of documents in the investigation. He got no response. Nordheimer blamed the Crown for much of the delay that led to the stay. The Attorney General has appealed.

Bentley said yesterday Crowns will be assigned to police stations in Toronto, Peel, Ottawa and Windsor.

But some defence lawyers involved in large-scale prosecutions are skeptical.

"The Crown and police can't be any closer than they already are," said defence lawyer Richard Posner. "Police have access to Crown attorneys around the clock."

Daniel Brown said special prosecutors have been involved in the earliest stages of several gang projects, yet Ontario is still experiencing lengthy trial delays.

Inmates win court food fight

Inmates win court food fight
Durham police agree to augment prisoners' lunch during hearing after lawyers launch complaint

Nov 18, 2008 04:30 AM

Betsy Powell Courts Bureau

"I'll have the Chicken Neptune."

That was the joking response of a prisoner in an Oshawa courtroom yesterday after Durham Regional Police Service reluctantly agreed to feed seven inmates more than a granola bar and juice box during lengthy court proceedings.

But the issue is no laughing matter, say the defence lawyers who complained their clients would be too hungry to follow their preliminary hearing, scheduled to begin today and last five weeks.

In September, defence lawyers, led by Daniel Brown, brought an application in an Oshawa court asking Justice David Stone to order Raymond Martin and six co-accused – who face a variety of drug offences – be provided additional food and drink in order to "meaningfully participate" in their preliminary inquiry.

But before the application could be heard yesterday, Kevin Inwood, a lawyer for Durham police, announced the force will add a sandwich and apple to the daily menu of the seven prisoners in order not to delay or disrupt the proceedings.

The force "wants to make it very clear they maintain they are not required to do so," Inwood told court. Durham police believe it is the province's responsibility to buy prisoners lunch and it is refusing despite agreeing recently to pay all court costs by 2012, he said, adding the cost "ought not to be borne by the taxpayers of this region."

Since August, inmates of Durham Region's five courthouses have received one granola bar and juice box at lunch.

The force changed the menu "to save staff time, reduce waste, provide a more nutritional meal and save money," an internal media briefing note said.

Previously, the inmates were given a cheese sandwich on white bread and can of pop.
While the lawyers declared victory yesterday and withdrew their application, they said the larger issue looms in courthouses across Ontario where penny-pinching policies are taking a bite out of food budgets.

"This concession by the Durham police is only in this particular case," said Brown. "Are we going to have to waste court time in future cases to litigate the same issue over and over again? I think the answer is yes."

The prisoners receiving the extra food are spending all day in court in addition to being driven for an hour to and from Central East Correctional Centre in Lindsay.

Before the deal was agreed to in court, Stone said he had no authority to order the province or Durham to provide more food. But he said if at any time he found any parties weren't "present" due to a lack of food, he could shut down the court.

Durham judge reconsiders prisoners' lunch menu

An Oshawa judge has ruled that seven inmates being tried on drug conspiracy charges will have to be given more food during the day while they're in court.

The decision came after defence lawyers argued their clients have a hard time staying alert during proceedings because of a slimmed down prisoner menu that Durham Regional Police implemented this past summer.

Detainees usually get a full breakfast at around 5 a.m. and then dinner at 7 p.m. Inmates used to get a sandwich and a pop halfway during the day but now all they get is a granola bar and a juice box.

"It's pretty bad when you have to starve and go to court," one prisoner told CTV Toronto as he was being hauled away.

The prisoners are held in a provincial jail and have their cases tried in provincial court but security is handled by Durham police. Durham police are expected to feed the inmates but recently, their food budget has dropped from $3 to $1 per person.

Defence lawyers say prisoners need to concentrate on their case when they go to court but that becomes hard to do when their stomachs are growling.

Lawyers have taken to asking for court delays until their clients are properly fed.

"You can't order either one of the parties to provide food but you can halt the proceedings until food is provided," said defence lawyer Daniel Brown.

Durham police officials say the prisoners' budget was cutting into their operation.

"Bear in mind, (the) $90,000 we spent on lunches last year, that's one policeman on the street," Supt. Michael Ennis told CTV Toronto in September.

Durham police argue the lunch tab should be the responsibility of the corrections ministry, not them.

Officials say the seven inmates who were granted a larger lunch menu have been segregated because of fears the decision would cause riots by other prisoners who were not granted the same consideration.

With a report from CTV Toronto's Austin Delaney

Defending Drug Possession Charges in Toronto, Ontario, Canada

Defending Drug Possession Charges in Toronto
Have you been charged with possession of marijuana, hashish, cocaine, heroin, GHB, ecstasy, magic mushrooms, ketamine or other illegal drug? This article is directed towards those persons charged with drug possession, or possession of a drug for the purpose of trafficking. If you are charged with either of these criminal offences, you should consult a criminal lawyer.

Defending drug possession cases
In a drug possession case, the crown must prove a number of different things:

1) Nature of the substance alleged to be an illegal drug:
In any drug prosecution, the Crown Attorney must first prove that the item in question is actually an illegal drug as defined by the Controlled Drugs and Substances Act. Absent a specific medical exemption, It is illegal to possess any of the following drugs in Canada: marijuana, hashish, cocaine, heroin, GHB, ecstasy, magic mushrooms, ketamine, lsd, crystal meth, opium or any other drug listed in Schedule I, Schedule II, Schedule III or Schedule IV of the Controlled Drugs and Substances Act.

Typically, the Crown will prove the nature of the substance alleged to be an illegal drug by tendering into evidence the "Certificate of Analysis" of a qualified analyst from Health Canada who has tested the narcotic or by calling the analyst to give direct evidence on the issue.

2) Proof of possession:
The Crown Attorney must also prove that the person charged was in legal "possession" of the illicit drug. The Controlled Drugs and Substances Act provides a definition of possession as follows:

A person has anything in possession when he has it in his personal possession or knowingly:

[actual possession]
(i) has it in the actual possession or custody of another person, or

[constructive possession]
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person; and

[joint possession]
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

Actual Possession:
To prove someone is in actual possession of a drug, the Crown must show (i) knowledge of what the item is; and (ii) some measure of control over the item.

(i) knowledge of the illegal drug
Simply having an illegal drug in your pocket may not establish actual possession if a doubt can be raised on the issue of knowledge that the item existed. For example, one may wear a piece of clothing (such as a jacket or pair of jeans) belonging to friend or relative without knowledge of what is contained within the pockets of the clothing. This person cannot be said to have knowledge of the illegal drug.

Without knowledge that the drug was there in the first place, one cannot properly be found guilty of the offence of possession.

Another scenario may exist where the person was aware of the item alleged to be in their possession but they did not know the item was an illegal drug. For example, someone in possession of a bag or marijuana, mistakenly thinking it was a bag of oregano or another type of herb used for cooking cannot be said to have the requisite knowledge to establish possession of the illicit narcotic.

However, mistaking one type of illegal drug for another type of illegal drug is not a proper defense to possession of a narcotic. A person will not be acquitted of possession where he or she asserts that they believed they were in possession of cocaine when they were actually in possession of heroin.

(ii) control over the illegal drug
Even if the Crown can prove that a person had knowledge of the illegal drug, the Crown must also prove that the person exercised some measure of control over the drug.

Constructive Possession
Even if someone doesn't actually have drugs located on their person, they can potentially be found to be in possession of the drugs if it can be determined that they had both knowledge and control over the drugs.

Because the accused is not in actual, physical possession of the drugs in cases of constructive possession, the necessary knowledge and control must be inferred from other evidence.

For example, if drugs are found in the glove box of a motor vehicle owned and driven by the accused at the time the drugs were seized, it may be argued that the driver had the requisite knowledge and control over the vehicle, thus establishing he was in possession of the drugs located within the vehicle. The same can be said for an item found inside an accused person's bedroom or suitcase.

However, in the same scenario where drugs are located in the glove box, a passenger in the vehicle may not be found guilty of constructive possession as they may be able to raise a doubt as to whether they had either knowledge or control over the illegal substance or the vehicle in which the substance was found.

Joint Possession
Joint possession of an illegal drug can be found where one of two or more persons is found in possession of a drug with the knowledge and consent of the others.

The key difference between joint possession and constructive possession is that constructive possession requires an element of control over the item whereas joint possession does not require control but rather the consent that someone else exercise control over the item.

A person may be found guilty of joint possession where the evidence reveals that they permitted someone else to hide drugs inside their apartment or store drugs in the glove box of their motor vehicle.

Constitutional Challenges in Drug Possession Cases
Quite often, the issue at trial is not whether the Crown can prove the item is an illegal drug or prove that the accused was in possession of the drug. The issue becomes whether or not the police legally obtained the evidence used to establish proof of possession of the narcotic in accordance with constitutional standards.

In Canada, every citizen enjoys the right to be free from unreasonable police searches and the right not to be stopped and detained by the police without a valid reason. Despite these protections, Canadian citizens -especially those from minority groups- are constantly subjected to arbitrary police stops and illegal searches of their homes, vehicles and personal property.

When the police obtain evidence through the violation of a person's constitutional rights, the Court may conclude that any evidence obtained from the illegal stop or search should not be admitted in the accused person's trial. This is a special type of application brought before the judge at trial called a "Charter challenge" -referring to the constitutional protections found in the Canadian Charter of Rights and Freedoms.

I have argued several successful charter challenges resulting in the exclusion of evidence in drug cases on the basis that the police lacked a valid reason to stop and search the person leading to the discovery of the drugs. Some examples of these Charter challenges in drug possession cases can be found on my Recent Successes page.

Possession for the Purpose of Trafficking
If someone is charged with possession of a narcotic for the purpose of trafficking, the Crown must first prove that item found was an illegal drug and that he or she was in possession of that drug.

Additionally, the Crown must prove that the person possessed the drugs with the intention to sell (or give) it to others.

in determining whether or not a person is in possession of a drug for the purpose of trafficking, the Court will examine a number of factors including:

a) the quantity of drugs involved;
b) the value of the drugs involved;
c) the drug paraphernalia found;
d) the amount of money found;
e) the denomination of the money found;
f) any statement of the accused;
g) any association with known drug traffickers;
h) any unexplained wealth; and
i) the credibility of defence witnesses.

Simply being found in possession of a large amount of any drug may lead to a charge of possession for the purpose of trafficking- but it will not necessarily lead to a conviction on that charge. For example, an accused person may testify at trial that they regularly consume a particular drug and therefore possessed a large amount of it to ensure they would have a continuous supply of the illicit substance for their personal use. An admission such as this will not provide a defense to a possession charge, but may lead the judge to reduce the charge from possession for the purpose of trafficking to the less serious charge of simple possession. This type of reduction in the charge may have a significant impact on the type of sentence imposed by the Judge.

Sentences for possession and possession for the purpose of trafficking charges
It is difficult to estimate the type of sentence a Judge may impose for being in possession of a narcotic. Generally, the Court examines the circumstances of the offender in conjunction with the type of drug, the quantity of the drug and the reason the accused was in possession of the item. The Court generally treats drug addicts with more leniency than those persons alleged to possess drugs for commercial gain. Each case is fact specific and requires a detailed analysis of all of the factors in order to determine an appropriate sentence range. Typically, a person found in possession of "hard drugs" such as cocaine and heroin are more likely to attract a jail sentence than those found in possession of "soft drugs" such as marijuana or hashish.

If you, or someone you know if facing a drug possession charge in Toronto, or anywhere else in Ontario, you should immediately contact a lawyer to discuss the best way to successfully defend against the allegation. For a free consultation, I can be reached at (416) 297-7200.

Is justice system blind to colour?

Justice experts offer theories about reasons visible minorities are less likely to be convicted, more likely to have DNA taken

July 21, 2008 Jim RankinBetsy Powell Staff Reporters

Visible minorities charged with a crime in Canada are less likely to be convicted, but more likely to have a DNA sample taken. They're also more likely to have police warnings on their file for violence, escape risk and suicidal behaviour.

These differences were identified in a Star analysis of the criminal histories of nearly 3 million people. The data comes from the Canadian Police Information Centre database, in which race is recorded as white or non-white.

While the differences between the two groups are clear, the reasons for them are less so. On the surface, they raise questions about the fairness of Canada's justice system.

The data, obtained in an access to information request that took 2 1/2 years, is a snapshot of Canadian criminal histories as of late 2005. The cases were serious enough to require fingerprints and were submitted by local police to the RCMP-administered CPIC database in Ottawa.

The Star asked criminologists, lawyers, a judge, and a police chief for their theories on the key differences.

NO CONVICTION
The data obtained by the Star contains two kinds of files: 2.4 million criminal records where a conviction was registered and 500,000 criminal histories, where there was a charge but no conviction.

A "no conviction" notation means there was one of the following:
an acquittal; a withdrawal or stay of charges; a finding of guilt but an absolute or conditional discharge upon sentencing.

Even without a conviction, the record of having been charged can remain for years in the CPIC database, which is accessed tens of millions of times a year by police, other enforcement agencies and even potential employers.

The Star's analysis of the data shows that non-whites were 53 per cent more likely than whites not to be convicted.One explanation for the difference is that judges could be giving more discharges to non-white offenders as a "reward" for dead time spent in jail awaiting trial. The 1995 Report of the Commission on Systemic Racism in the Ontario Criminal Justice System determined that black accused, for example, are more often held without bail. "My guess," said an Ontario judge who reviewed the findings but who asked not to be identified, "is that if the 'non-whites' have spent more time than 'whites' in pre-trial custody, one of the ways judges may 'reward' them is by giving a discharge rather than registering a conviction, especially as there may be immigration consequences if a conviction is registered."

That same systemic racism report found that black accused were more likely than white accused to plead not guilty, which would increase the chance of not being convicted.

Defence lawyer Daniel Brown, of the Toronto law firm Pinkofskys, suggests there is over-charging in cases where there are multiple non-white accused.

"We see this all the time in large gang projects where hundreds are arrested and thousands of charges are laid, only to see a few accused left at the end of the day facing a handful of charges."

There have been similar sweeps of Aboriginal gangs out West, which might also explain this phenomenon.

University of Windsor law professor David Tanovich also pointed to overcharging as a possible explanation, but also saw something positive in the data differences.

It may mean, he said, that more Crowns are "withdrawing charges they feel are the product of racial profiling. This is a positive thing."

Scot Wortley, a University of Toronto criminologist who has devoted most of his academic career to examining bias in the justice system, said the differences in conviction rates could damage the reputation of police.

"For whatever reason, the data suggests that minorities are much more likely to be charged without enough evidence for prosecutors to get a conviction. If they are concentrated in particular communities, it could undermine the legitimacy of law enforcement – that the community itself may believe police lay bogus or unwarranted charges as a means of harassment."

Lawyer Adam Weisberg, also with Pinkofskys, suggests fewer findings of guilt for non-whites were due to heavier policing in poorer neighbourhoods with a higher proportion of new immigrants. "In a neighbourhood with a heavy police presence there are more charges, and with quantity, there is often a decline in quality."

Toronto police chief Bill Blair, president of the Ontario Association of Chiefs of Police, says the explanations suggested by defence lawyers are "quite predictable."

"It is the job of defence counsel to create reasonable doubt, obfuscate, and one of the ways they might do that is to undermine the credibility and confidence the criminal justice system would have in the police," says Blair.

"So they're suggesting the police would be responsible for this in the absence of a great deal more information which would be required to determine what is really going on."

Police do deploy more officers in troubled neighbourhoods "where are people being hurt, where people are being injured, where violence is taking place," says Blair. "Yes, there are criminal acts that take place in other neighbourhoods but they don't represent the same level of risk to the broader community."

As for his thoughts on the difference on convictions, Blair said he would need to know more.
"Without knowing what charges we're talking about, what were the reasons by which they were not convicted . . . it would be difficult to speculate on why that would be."

DNA DIVIDE
The Star analysis of CPIC data shows that 32.5 per cent of those required to provide DNA samples were non-white, even though non-whites make up only 16.7 per cent of those with criminal records.

For sex crimes, kidnapping and murder, a DNA sample is required upon conviction, although Canadian judges have been scolded for not always ordering samples when they are supposed to.
For other major, yet less serious crimes, such as criminal mischief, robbery and assault, judges have discretion to decide if DNA should be taken.

The difference in who gives samples cannot be explained simply by differences in the seriousness of charges. (Non-whites account for a disproportionately high 23.9 per cent of records for violent offences; the same for robbery.)

Comparing the same kinds of criminal records still shows a difference between whites and non-whites. For example, of people who have a criminal record for violence, 10.5 per cent of non-whites had DNA taken versus 6.1 per cent of whites. For with a record for robbery (and nothing else) non-whites are 50 per cent more likely to have had a sample taken.

"The DNA stuff is troubling," the judge who reviewed the data analysis said in an e-mail. "One would have to know if the charges are different – i.e. if `non whites' are charged more frequently for offences likely to carry a mandatory requirement for a DNA sample, or whether judges are ordering them more where they have a discretion to do so. I don't know about that, and I haven't heard any rumblings about that as an issue."

Brown, the lawyer with Pinkofskys, questions giving judges discretion to order DNA. It "leaves open the possibility that bias may play a role – consciously or unconsciously – in the decision-making process."

Chief Blair says the difference here is "interesting," but believes it reflects differences in the kinds of crimes being committed by the two groups.

DANGER WARNINGS
Non-whites are more likely to have warnings on their file than whites indicating they are considered violent or a suicide risk. These, along with notations for mental instability and escape risk, are entered by local police forces.

The differences remain even when looking at whites and non-whites with similar records.
For example, of those with criminal records for violent offences, non-whites are more likely to also have a notation for violent behaviour marked on their record.

Chief Blair believes the difference here simply reflects reality and that skin colour is not a factor. The warnings are "determined entirely by the behaviour and the crime in which they're charged."

Police routinely see these warnings while accessing CPIC records from computers in their cruisers and that helps "protect" officers, says Blair. But Wortley says having more warnings can "lead to an exponential increase" in how harshly the justice system handles individuals. "It might justify further surveillance. It might justify holding somebody for bail. It may justify tougher treatment when individuals discover that the special designation exists."

Wortley connected the extra warnings on the records of non-whites with a study he and a colleague did of Toronto courts in the early '90s. It examined more than 1,800 criminal cases handled in two bail courts and determined that visible minorities were more likely to be detained before trial. And, if they were released, they were much more likely to have special conditions on their release, which gave police power to stop and search them, increasing "their chances of ultimately ending back in the justice system."

York University Professor Frances Henry and Carol Tator, researchers who have co-authored a book on racial profiling in Canada, also reviewed the data. In an e-mail, they say the differences in danger warnings are "in line with the racial profiling evidence shown in much of the literature both here and abroad in which extra surveillance and scrutiny especially of blacks is often emphasized."Said the judge: If "such notations are in the discretion of the police officer, that is troubling. But one would need to know a lot more before one could say that this amounts to direct/intentional discrimination."

The Star also asked the Canadian Association of Black Lawyers to review the differences. President Frank Walwyn echoed a point raised by everyone contacted for this story. His association would like to know more.

"While the numbers on their face seem to support anecdotal references to pervasive stereotyping and racism within the criminal justice system," said Walwyn, "one thing we can say definitively is that more information is needed in order to draw meaningful conclusions from these numbers."

How to Appeal a Criminal Conviction or Sentence in Toronto, Ontario

How to Appeal a Criminal Conviction or Sentence

This article is a brief and general overview of legal information about criminal appeals in Ontario. It is not intended to be used as a substitute for proper legal advice. Those looking for legal advice on the time limits or process of filing an appeal with the court should consult a criminal lawyer.

What is an appeal?
In a nutshell, an appeal is a review by a higher court to determine the correctness of what happened at the trial and whether the trial was conducted fairly. Usually, appeals are based on the judge at the trial making a mistake in how he or she applied the law to the facts of the case. However, in some circumstance, an appeal can also be used to review whether the judge properly considered the evidence put forward at trial or whether the evidence was sufficient for a conviction. An appeal can be brought against a conviction or sentence.

What is the difference between a conviction appeal and a sentence appeal?
A conviction appeal challenges whether the person should have been found guilty or not guilty at trial. A sentence appeal challenges the type or length of punishment the Judge imposed after a person has been found guilty. A person seeking to appeal their case may chose to appeal both the conviction and sentence at the same time.

There are two types of appeals for criminal matters:

Summary conviction appeals
A summary conviction appeal is a review of a decision of a provincial court judge where the Crown has made the decision to proceed by way of a summary trial or the Criminal Code requires that trial proceed summarily. The Crown will often choose to proceed summarily where the case is less serious or they are seeking a lower penalty at the end of the trial. For most summary conviction cases, the maximum penalty is six months in jail (some offences have a maximum sentence of 18 months in jail). Summary conviction appeals are brought before a single judge at the Superior Court of Justice in the jurisdiction where the trial took place. For instance, if the trial took place in Toronto, the appeal would be heard at the Superior Court of Justice in Toronto, at 361 University Avenue.

Indictable appeals
For more serious matters, the Crown may choose to proceed by Indictment or the Criminal Code may require the offence proceed by way of Indictment (for instance, murder, robbery or kidnapping). In Ontario, these appeals take place at the Court of Appeal for Ontario in Toronto regardless of where in the province the trial took place. Appeals to the Ontario Court of Appeal are heard before a panel of three judges.

What are the time limits to appeal?
For both summary conviction appeals and indictable appeal you can start an appeal after you have been convicted. Appeals have strict time limits. The time limit is normally 30 days from the date on which you are sentenced. For many summary conviction matters or guilty pleas, the conviction and sentence happens on the same day. It is possible to bring an appeal outside the 30 day period, however, you have to seek special permission from the appeal court.

Is it possible to get bail during my appeal?
It is possible to get bail while your appeal is before the Court. This is called bail pending appeal. Bail pending appeal requires a separate motion to be brought before the Court hearing the appeal. The Court must be satisfied of three things:
1) There is a possibility that the appeal will be successful;
2) It is not contrary to the public interest that the person be released pending appeal (this a very significant factor for offences that result in a long jail sentence); and
3) That the person will surrender themselves on or before the date of the hearing.

Is it possible to suspend other Orders, such as a driving prohibition, during my appeal?
It is also possible to have ancillary court orders imposed as part of the sentencing be suspended pending the determination of the appeal; for instance, the mandatory year long driving prohibition on convictions for impaired driving. Fines, restitution, forfeiture of property or probation orders can also be suspended pending appeal. Like a bail pending appeal, this requires a separate motion before the Court that will hear the appeal.

How are appeals conducted?
An appeal is not a re-trial of the case. The evidence that was heard at trial is often not in dispute. All the evidence heard by the witnesses at trial (transcripts of testimony) and any physical evidence entered at trial (exhibits) are reproduced for the appeal court. The issue on appeal is whether the judge applied the law properly and arrived at a decision he or she was entitled to make. An appeal court does not under normal circumstances hear witnesses or receive any new evidence. The appeal court will also generally not interfere with a judge's findings of credibility (i.e. whether the trial judge believed or did not believe a witness). The court process consists of the lawyers making legal arguments (submissions) as to whether the decision of the judge at trial was correct in how he applied the law to the evidence before him.

What is a factum?
The "factum" is a fancy name for a document that briefly outlines the facts of a case and the legal arguments that are going to be made during the hearing of the appeal. Most of the work done on appeals is done outside the courtroom. The appeal court requires that a full outline of all the arguments and the law that the parties are going to rely upon be prepared in advance of the hearing and filed with the court.

Is it possible to put new evidence before the appeal court?
It is possible for the appeal court to hear new evidence on appeal; however, the ability to put new evidence before the court is very limited. The appeal court can consider new evidence if it was not available at trial through the trial lawyer's due diligence, it is significant and reliable evidence and it could have affected the verdict if it was before the trial court.

What are some of the results from a successful appeal?

a) Order a new trial:
A successful appeal can result in the judge (or judges) ordering a new trial if the appeal court is convinced that the judge at trial made a legal error or the trial was not conducted fairly. The appeal court will set aside a conviction and order a new trial before a different judge. It is then up to the Crown to determine whether or not they will re-prosecute the offence. In some cases ,the Crown may decide it is no longer in the public interest to re-prosecute the case again.

b) Order an acquittal:
In circumstances where the appeal court is convinced that the evidence does not support a conviction, the appeal court may set aside the conviction and order that a finding of not guilty, an acquittal, be substituted. This occurs more rarely than a new trial being ordered.

c) Vary the sentence:
If the appeal court is convinced that the sentence imposed by the trial judge was too high or the judge at trial made a legal error during the sentencing, the appeal court may lower the sentence, may order that a sentence be served in the community or may remove any ancillary orders imposed as part of the sentencing (such as weapons prohibitions, DNA orders, fines, restitution or probation).

What does it cost to appeal?
The costs to appeal will vary depending on whether it is a summary conviction appeal or an indictable appeal, the complexities of the legal issues and the length of the trial. For instance, appeals that require fresh evidence are often more expensive. There are also significant costs up front to pay for the transcripts of the trial.

Every word that is spoken in open court is recorded by a court reporter - whether it is evidence from witnesses or legal argument made by the lawyers. The appeal court requires copies of the transcripts be filed with the court to assist them in deciding the appeal.

For conviction appeals, usually the entire transcript of trial is required. In the case of sentence appeals, the court is prepared to decide the matter on less than a complete record, often supplemented by an agreed statement of facts between the defence and the Crown. This often results in less costs.

For indictable appeals, the cost of transcripts alone are $3.75 per page (for five copies) or approximately $500 - 600 for a full day of court time; thus a five day jury trial in superior court could cost $2500 to $3000 for the transcripts.

For summary conviction appeals, the transcripts are usually shorter but the cost per page is higher at $4.30 per page (for three copies).

If you, or someone you know requires assistance with a sentence appeal or conviction appeal, you should immediately contact a lawyer as the clock may already be ticking on the appeal deadline. For a free consultation, I can be reached at (416) 297-7200.

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Defending Criminal Mischief Charges in Toronto, Ontario

Criminal Mischief Charges

This article is a brief and general overview reviewing legal information about criminal mischief charges in Toronto, Ontario. Those looking for advice on mischief charges should consult a criminal lawyer.

What is mischief?
The definition of mischief is found in the Criminal Code at section 430. Generally mischief occurs when a person does any of the following:

(a) destroys or alters property;

(b) renders property dangerous, useless, inoperative or ineffective;

(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or

(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

What is the difference between a charge of mischief under $5,000 and mischief over $5,000?

If the value of the damaged item exceeds $5,000 dollars, the crown attorney may seek an increased punishment of up to ten years in jail. Otherwise, the charge of mischief carries a maximum penalty of two years in jail. It is important to note that most mischief convictions will not result in any jail time.

What if the damage was caused accidentally?

It is an express requirement of the Criminal Code that the person who does the act alleged to constitute the mischief act “wilfully”. An unintentional or accidental act will not meet the standard of willfully damaging property sufficient to trigger criminal consequences.

Can I be convicted of mischief for damaging my own property?

In law, a person may damage something that is wholly owned by them as long as there exists no intent to defraud. This is not considered mischief as the charge relates specifically to damage of property owned wholly or in part by someone other than the person causing the damage.

In a domestic context, a person may attract criminal liability for mischief if they have damaged property jointly owned by both spouses. However, a person who believes that he or she had the legal right to damage property as a result of a mistaken belief in sole ownership is not guilty of mischief in respect of damage to that property.

Will I have a criminal record for intentionally damaging somebody's property?

Depending on the property damaged, the circumstances of the offender and the offence alleged, it may be possibly to negotiate with the Crown to withdraw a criminal charge of mischief in exchange for reimbursing the victim for the damage caused (this is called "restitution"). Often times, paying restitution may result in a withdrawal of the criminal charge.

Even if the Crown Attorney is not willing to withdraw the charge, paying restitution will act as a significant mitigating factor at the time of sentencing before the judge.

It is important to remember that every allegation of mischief is a fact specific inquiry. Consulting a lawyer will assist you with identifying potential defences to this type of allegation. Call me at (416) 297-7200 for a free consultation about your case.

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Uttering Death Threats or Threatening Bodily Harm

Uttering Death Threats or Threatening Bodily Harm

This article is a brief and general overview reviewing legal information about uttering threats in Toronto, Ontario. Those looking for advice on uttering threats charges should consult a criminal lawyer.

What is the definition of a threat?

The definition of uttering threats is found in the Criminal Code at section 264.1. Generally anyone can be charged with uttering a threat if they utter, convey or cause any person to receive a threat:
(a) to cause death or bodily harm to any person;
(b) to burn, destroy or damage real or personal property; or
(c) to kill, poison or injure an animal or bird that is the property of any person

What if the threat isn't said directly to the intended target, but to a third person?

The accused need not utter the threat directly to the intended victim to be found guilty. Furthermore, when the accused does not utter the threat directly but rather threatens to harm the intended victim to a third person, it is not a valid defence to argue that the accused did not intend that third person to communicate the threat to the intended victim for the crime to be established. Indeed, it is not even necessary for the intended victim to be aware of the threat in order to be found guilty of the offence.

What is required to establish a threat in law?

The Crown must prove that the accused knowingly made the threat and that he/she intended the threat to be taken seriously so as to produce a reaction of alarm or fear in the mind of the recipient.

What if the recipient of the threat did not take the threat seriously?

In law, all that is required is that the person making the threat intended the threat to be taken seriously. The fact that the person receiving the threat was not intimidated or scared does not constitute a defense to the charge of uttering threats.

What if it was threat was impossible to carry out?

Even in a situation where the accused makes a threat he/she could not carry out i.e.: " I will drop you from the top of the C.N. Tower", he/she may still be found guilty of the offence. The central focus for the Judge in deciding whether or not a threat was made will be on the maker's intention when the words were uttered (was it meant to be taken seriously so as to produce a reaction of alarm or fear in the mind of the recipient) - not on the present ability to carry out the threat.

It is important to remember that every allegation of threats is a fact specific inquiry. Consulting a lawyer will assist you with identifying potential defences to this type of allegation. Call me at (416) 297-7200 for a free consultation about your case.

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Sexual Assault Charges - Toronto, Ontario

Criminal Sexual Assault

Sexual Assault is a serious crime in Canada. The mere stigma of being accused of sexual assault can irreparably damage a person’s reputation. This article is a brief and general overview of the law as it relates to the criminal charge of sexual assault in Toronto, Ontario. Those charged with sexual assault should consult a criminal lawyer.

Definition of Sexual Assault
Sexual assault is defined as an assault which is committed in the circumstances of a sexual nature such that the sexual integrity of the victim is violated.

Determining whether an assault is "sexual in nature"
To determine if an assault is sexual in nature, the court looks at the part of the body being touched, the nature of the contact, the situation in which it occurred, the words and gesture accompanying the act, and all other circumstances surrounding the conduct including the motives of the accused person.

Definition of Sexual Assault
Section 265 of the Criminal Code of Canada outlines the offences of assault and sexual assault as follows:

A person commits an "assault" when:

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
obtained where the complainant submits or does not resist by reason of the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
(3) Where the accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

Was there Consent?
A central issue in most sexual assault cases is whether or not the sexual activity in question was consensual between the parties. Consent is the voluntary agreement of the parties to have engaged in the sexual activity.

Lack of Consent
Consent will not exist in any of the following situations:
(a) where the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity by virtue of the complainant's mental state at the time (i.e. intoxication, mental illness, etc.);
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity;
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the conduct; OR
(f) The complainant is under the age of 16 (Note: this is subject to the "close-in-age exception," meaning 14- and 15-year-olds can have sex with someone who is less than five years older.)
Mistaken Belief in Consent
An accused may be acquitted of sexual assault even where there existed no consent between the parties if the accused held an honest but mistaken belief that the sexual activity was consensual.

An honest but mistaken belief in consent can be raised if the accused establishes that the complainant affirmatively communicated consent through the complainant's words or actions.

However, the accused honest but mistaken belief in consent cannot arise from any of the following scenarios:

(i) self-induced intoxication;
(ii) recklessness or wilful blindness; or
(iii) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Was Consent Given?
In order to determine if consent was given, the Court will look at the parties’ words, conduct, and reasonable steps. Words and conduct are important when trying to establish if the complainant consented to the sexual contact. The Court will not accept a complainant's silence or passivity as a form of consent; in other words, implied consent is not a defence to criminal sexual assault. If the Court finds that the accused continued sexual conduct after the accuser indicated "No" through words or conduct, the accused’s actions may be considered reckless, and he or she could be convicted under the Criminal Code of sexual assault.

Undoubtedly, the issue of consent can be a grey area, as parties’ perceptions of events may vary a great deal. The Court will look at consent from the complainant's point of view.

Furthermore, the Criminal Code requires that the accused must show that under the circumstances, he or she took reasonable steps in order to ascertain the accuser’s consent. Courts have maintained that not all reasonable steps to ascertain consent need be taken; but rather that efforts were made to take some reasonable steps would be sufficient.

Of course, just taking “some reasonable steps” alone will not prove consent, but even if the accused thought consent was given, and it turns out that it was not, taking some reasonable steps may provide the defence with some creditability, as it shows the judge or jury the accused thought what a reasonable person would have thought under similar circumstance, i.e. that consent was given.

Limits on Attacking a Complainant's Credibility
There was a time when a person accused of sexual assault was permitted to question the complainant in a sexual assault case about their past sexual history as a way of attacking the complainant's credibility. This is no longer permitted by the courts. If a person accused of sexual assault wishes to ask questions about an accuser's prior sexual activity, a special application must be brought before the trial judge. The Court may allow an accused person to ask questions about a complainant's prior sexual history, psychiatric or medical records as evidence that their credibility should be questioned; but this will only be permitted in very limited circumstances.

Sentencing and Punishment for Sexual Assault
If an accused person is found guilty and must face sentencing on a sexual assault charge, the sentence could range anywhere from no time in jail at all to a maximum of 18 months or 10 years depending on whether or not the crown proceeds on the sexual assault by "summary conviction" or whether they proceed by "indictment". How a crown chooses to proceed is entirely within their discretion. There are pros and cons to both procedures.

Since a sexual assault allegation can cover a wide range of assaultive behavior from groping someone to full intercourse, each case must be considered individually in order to assess the appropriate punishment.

In sentencing, a judge will consider a host of factors when it comes to determining an appropriate punishment, such as the offender criminal record, the personal circumstances of the offender, the circumstances of the case, as well as the brutality or lack thereof regarding the assault. Each case is unique.

If you, or someone you know if facing a sexual assault charge, you should immediately contact a lawyer to discuss the best way to successfully defend against the allegations. For a free consultation, I can be reached at (416) 297-7200.

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