Toronto Criminal Lawyer

The Silent Treatment - the story behind my murder trial

2009-08-15T17:52:00.006-04:00

August 14, 2009

The silent treatment

By Joe Friesen
From Saturday's Globe and Mail

Mackel Peterkin was no gangster. He'd benefited from many social programs to help him make something of his life. So why, at 18, did he find himself charged with murder? It's because, where he came from, ‘no snitching' was the highest law of all

Mackel Peterkin had lived so long suspended between condemnation and redemption that the wait had become almost normal.

Sitting outside Toronto's main criminal courthouse under a punishing sun, the brawny, square-jawed 20-year-old complained of the heat but made no attempt to move. It felt as if the afternoon would carry on forever.

For the anxious relatives sitting beside him, eternal uncertainty seemed preferable to the likely alternative – life behind bars.

It had been two years since Mr. Peterkin was arrested for allegedly planning and carrying out the execution of his friend Allen Benn. Before that, he had been seen as one of the rare kids in his rough neighbourhood who would avoid this kind of trap.

He had grown up poor, but he had been the beneficiary of countless interventions – from government programs to private-sector philanthropy – aimed at shepherding him safely to adulthood. He wasn't a gangster; he was a decent kid. And yet he was facing 25 years to life for first-degree murder.

The jury had been deliberating for three days. In 2008, 93 per cent of homicide trials in Ontario ended with guilty verdicts.

But Mr. Peterkin was confident in spite of the odds.

“If they convict me, they have to let 10 men out of jail,” he liked to say, referring to the legal principle that says it's better that 10 guilty men go free than that one innocent man be imprisoned.

In the slow stillness of the afternoon, he wrestled his arms free from his dress shirt and let it drape around his neck like a scarf. With his black pants covering black Nike Air Force Ones, he was willing to bend only so far to the formality of the court.

Then his mother's cellphone rang. It was their lawyer. The jury was coming back with a verdict. His mom grabbed him around the waist, hugging him tightly. He tried to push her aside as he gulped for words.

“Mom, it's okay, I'm coming home,” he said, trying to sound brave. He strode ahead alone.

When the jurors entered the courtroom that final time, they didn't so much as glance at Mr. Peterkin, nor did they acknowledge his best friend and co-accused, Shaun Blake.

In the back row, a lawyer whispered, “They won't look at the accused. They're done. They're going down.”

‘A mysterious kid'

Mackel Peterkin was born on a rainy night in Scarborough in the fall of 1988. His mother's fifth child, he entered the world with six fingers on each hand. His mother asked that the two additional pinkie fingers be cut away so he wouldn't be made fun of at school.

“I said, ‘This is a mysterious kid. He's a different kind,'” said his mother, Mazeline Allen.

She had grown up in Jamaica and at 14 came to Canada, where she was reunited with a mother and father she had never known. The reunion didn't go well. She didn't get along with her mom and her dad died of a stroke at 42.

Her grandmother had told her that in Canada the streets were lined with money – all you had to do was bend down to pick it up. But for Ms. Allen, Canada was a cold and lonely place, and she struggled, finding work here and there in construction. She would eventually have nine children with six different men.

She now lives in public housing in Toronto's suburban northwest at Jane Street and Finch Avenue, an area known as one of Canada's most violent neighbourhoods.

Her living-room walls are decorated with a dozen portraits of Egyptian emperor Haile Selassie, the Rastafarian king.

Ms. Allen looked fondly at a photo of Mackel in kindergarten, dressed in a red-and-black-striped cardigan. “They thought he was the child who couldn't speak. They would ask me, ‘Is he dumb?' I'd say no, that's just Mackel.”

His report card from that year said he was steadily gaining self-confidence. He liked math, puzzles, painting and cut-and-paste, and he wanted to be an astronaut. But his absence on nearly 20 per cent of school days (10 per cent is considered high) foretold a more difficult future.

Growing up in the Palisades apartment towers, Mr. Peterkin befriended a local kid named Shaun Blake with a life story very similar to his own. I met the two boys when I was reporting on the community in the summer of 2006. At the time, the city was gripped by the cascading toll of young, black homicide victims, a pattern that, with ebbs and flows, continues to play out today.

Mr. Peterkin and Mr. Blake belonged to the group of teenagers that hung around the San Romanoway Revitalization Association; they called it the Centre. They were acutely aware that, as young black men, they were perceived as a threat to peace and order. It was hard to ignore: When prime minister Paul Martin promised a major crackdown on gangs and guns in 2005, he didn't just come to their neighbourhood – he came to their building.

One evening at the Centre, a counsellor asked the boys to introduce themselves and describe their ambitions. The typical exchange went something like, “My name's Lefty. I live in Palisades, my favourite subject is science, I'm going to play in the NBA ... and I'm deadly.” Everyone would crack up.

Mr. Peterkin, though, was more mature. While his friends reacted aggressively to any perceived slight, he was a calming presence. His academic struggles placed him two years behind his age cohort, but that was not unusual in the group. When it was his turn to talk about his ambitions, he had scaled back considerably from dreams of space travel: He said he wanted to operate the jackhammer on a construction crew.

Everyone laughed. The counsellor scolded him and asked what he really wanted to do. He replied, somewhat hurt, that he was telling the truth.

For teenage boys in that area, gangs are one of life's central pillars. The group at the Palisades considered themselves Bloods. They wore the red clothing and joked around with their gang signs, but their crimes were of the theft-from-a-locker or schoolyard-fight variety, not those of gun-toting thugs.

At the time, I thought these were the kids you'd never hear about, clearly benefiting from the programs that aim to keep children from at-risk neighbourhoods out of trouble.

Every year, millions of dollars are spent on scholastic, athletic, vocational and crime-prevention programs for the hundreds of kids in the neighbourhood. At the Centre alone, they received more than $500,000 last year from donors ranging from Public Safety Canada, the City of Toronto, the Attorney-General's Ministry, the Royal Bank and the United Way.

Mr. Peterkin had participated in at least six funded programs before his 18th birthday, including the Boys and Girls Club, Y-Connect, Rising Stars, Straight Talk, Hoop to Hope and Raptor Ball.

One of his mentors was Benjamin Osei, who often led the programs. He said Mr. Peterkin “didn't have any gangster nature about him.”

But there was no getting around the fact that he and his friends came from poor families, did badly in school and had no sense of what to do with their lives. They believed the world was racist and that the odds were stacked against them from birth.

The temptation to make easy money serving the daily procession of crack and dope buyers was ever present, as was the possibility of being recruited by the serious, grown-up gangs.

Mr. Osei said they were like starfish on the beach. You could save a few by throwing them back in the ocean, but every wave brought dozens more.

Joker's last hand

On April 2, 2007, 20-year-old Allen Benn was sitting down to dinner with his family in the Grassways housing complex. His little sister didn't like the food, so Mr. Benn offered to go across the street to get some takeout chicken.

Mr. Benn, whose family came to Jane-Finch from Ghana when he was a child, hung around with the group from Palisades even though he lived on the south side of Finch Avenue. Known as Joker for his sense of humour, he had dropped out of school, but he was trying to turn his life around – he was washing dishes at a restaurant and volunteering at the Centre.

Thirteen minutes after leaving his apartment, Mr. Benn lay dying on the pavement. When paramedics arrived, he was struggling to breathe and rolling slightly from side to side. He had been stabbed five times and his small bowel was spilling out of a gash in his stomach.

The pathologist concluded that the wound that killed him sliced through his heart and liver, causing massive internal bleeding.

‘Stop snitching'

When Detective Sergeant Frank Skubic arrived at the homicide scene, he faced a problem endemic to criminal investigations in certain parts of Toronto.

It's a kind of parallel universe where the rule of law doesn't mean what it does elsewhere, and where citizens don't believe that the police can deliver on the promise to protect them.

As Det. Sgt. Skubic explained in court, every witness he found was the product of diligent door knocking, persuasion and cajoling. No one came forward offering information.

The “stop-snitching” campaign has been so effective in Toronto's poorest neighbourhoods that it is now very difficult to persuade anyone to help a police investigation. Many people fear that they will be killed by gangs. Some also feel that the police are a kind of army of occupation who shouldn't get their co-operation.

The slogan “stop snitching” gained cultural traction via hip-hop songs and a popular line of clothing that the mayor of Boston once tried to ban from stores. It's common to see teenagers in Jane-Finch wearing the T-shirts or having a stop-snitching logo on their MySpace or Facebook profiles.

I once saw two youth workers at the Centre, the very people whose job it was to set an example, explaining to an 11-year-old boy who had tattled on a classmate that if he continued to snitch, he would be hated.

As one gang expert testified in this case, in Jane-Finch “no snitching” means you don't talk to anyone, ever, about anything – because you're only ever a phone call away from being killed.

The Grassways public-housing complex, where the killing took place, is a labyrinth of interconnected low-rise buildings. It's known locally as Connections, partly for its shape and partly because it's a place to connect with a drug dealer.

The Crown's theory was that Mackel Peterkin and Shaun Blake conspired to kill Allen Benn with two 17-year-old youths who are being tried later this year in a separate proceeding.

Their case revolved almost entirely around surveillance video from the scene. With more than 50 video cameras throughout the complex keeping silent watch over comings and goings, the Grassways is a kind of surveillance fishbowl.

The video showed Mr. Blake and two youths, including one we'll call Jerome, hanging around the housing complex together about three hours before Mr. Benn was killed. Mr. Peterkin joined them just 20 minutes before the attack.

Mr. Benn returned from the restaurant at 4:50 p.m. and encountered Jerome. They spoke for a moment and then Mr. Benn followed Jerome toward a stairwell door out of camera view. Mr. Blake and Mr. Peterkin had disappeared in the same spot a few minutes earlier.

At 4:55 p.m., after being off-camera for four minutes, Mr. Benn emerged from the stairwell and fell to the ground. Mr. Blake, Mr. Peterkin and Jerome were not seen on camera again.

The police dragged Mr. Peterkin from his bed and arrested him three weeks later, in May, 2007. Mr. Blake was arrested at the same time by an emergency task force a few blocks south.

‘No comment'

They were interviewed that evening by Det. Sgt. Skubic and his partner, Det. Sgt. Terry Wark. Mr. Blake was shown the surveillance videotape, but he denied that he was on it. Asked if he could identify his friend Jerome, Mr. Blake said he didn't know him.

Det. Sgt. Skubic, a genial, hulking man, patiently skewered the lie. He rhymed off the places they might find evidence – on shoes, on clothing. Mr. Blake rocked slowly back and forth in his chair, eyes cast downward.

Det. Sgt. Skubic's voice softened and he leaned in closer, offering a way out. “It takes a man to stand up and say, ‘We didn't mean for it to happen, but it happened.' … Can you give us an explanation?”

A long silence followed. Mr. Blake, his arms tightly folded, mumbled, “Not true,” and then, “No comment.”

When the police interviewed Mr. Peterkin, he described his movements on the day Mr. Benn was killed. After school, he went to the Centre at Palisades, as he did every day, but couldn't go in because its director, Stephnie Payne, had temporarily banned the older boys to discipline them. Then, he said, he went to his sister's house. But the video showed he actually went to the Grassways.

“Did you stab this man to death?” Det. Sgt. Skubic asked.

“No,” Mr. Peterkin replied.

“But you know who did?”

“No.”

Mr. Peterkin said Mr. Benn had problems with “some Crip guys.”

“It wasn't the Crips who killed him, because we got the videotape,” the officer said. “Crips don't wear red.”

At the end of the questioning, Mr. Peterkin had tears in his eyes.

Both Mr. Blake and Mr. Peterkin lied consistently to police. Both said they weren't at the scene of the homicide, and the video clearly showed they were. Both said they didn't know anyone on the video, and they clearly did.

In court, the Crown argued that their lies were evidence of guilt, in particular Mr. Peterkin's feeble attempt to point the police at other suspects.

Mr. Peterkin's mother was livid. “Let me explain something to you: We live in Gangster City. If you talk to the cops, you get killed, simple as that,” she said. “The police know that. These boys aren't going to say who did it.”

Twists of fate

In fact, though, the Crown's whole case revolved around the no-snitching rule. Their theory was that Allen Benn was killed for snitching on a fellow Blood. A week earlier, Mr. Benn's friend had been robbed. Word on the street was that Mr. Benn had ratted out the robbers. It wasn't true, but, as one lawyer said, the presumption of innocence doesn't apply in the Grassways.

Bizarrely enough, the disastrous chain of events began five months earlier with a stroke of good fortune for Mr. Benn's friend Richie Poku: He won $1.1-million in the lottery. Mr. Poku moved to Brampton, bought a Mercedes and started wearing expensive clothes and jewellery. But his girlfriend still had family in Jane-Finch and one night visited her mother in the Grassways.

When Mr. Poku arrived to pick her up, he was stripped of his pants, shoes, necklace and car keys. His girlfriend, Bettina Marfo, concluded that the robbers were Jerome and another gang member named Kanadian. She called Kanadian's mother, who refused to believe that her son committed the robbery. In an attempt to bolster her accusation, Ms. Marfo said, “Even Allen warned Richie to be careful.” According to the Crown, those words sealed his fate.

Mr. Benn heard about that conversation days before he was killed. Panicked, he asked Ms. Marfo to change her story, to say it was a different Allen who warned her. “Those people don't play around with stuff like that. They call it snitching and you can get killed for it.”

Mr. Benn had never mentioned anyone by name. Nor did he have any information about a plan to rob Mr. Poku.

“All Allen Benn did was say, ‘Your boyfriend should be a little smarter about showing up in the Grassways with gold dripping off his body in a fancy car,'” said the judge, Mr. Justice David McCombs. “That's just something that any rational person would say to you. ... This boy died for nothing. He didn't break any code of any kind.”

Behind bars

The two boys spent nearly a year in prison. During their time at the Maplehurst jail, Mr. Blake was angry and constantly fighting. He was kept in solitary confinement for long stretches, and in one altercation a corrections officer smashed his head against a wall repeatedly, leaving him with a two-inch forehead scar.

Mr. Peterkin fared better. He knew someone on the inside who smoothed his transition and introduced him to people. Eventually he became one of the bosses on his range.

After several months, tests on their clothing came back from the forensics lab. There was very little there. One of Mr. Blake's shoes couldn't be ruled out as a match for a footprint at the crime scene, but it was a generic print from a very popular shoe (the judge ruled it inadmissible at trial).

Since the case against them was circumstantial, and neither had a criminal record, they were granted bail halfway through 2008.

Throughout the ordeal, the two boys steadfastly refused to say anything that would put them in the clear, if it meant putting others in jeopardy.

One day over lunch during the trial, Mr. Peterkin said that he had had an alibi all along: He was at his friend's apartment, just down the hall from the stairwell where Mr. Benn was attacked. The problem was that his friend, Brandon Miller, didn't corroborate his story when questioned by police.

“One thing that pisses me off, that one person didn't tell the truth, and that's Brandon Miller, because he could've got me out of all this. But I understand why he didn't. He didn't want to get himself involved,” Mr. Peterkin said. “I'd probably do the same thing.”

There were at least half a dozen other people who could have put him in the clear, he added, but none of them would speak up either.

As the trial wore on, it became increasingly evident that the Crown's view was that Jerome likely committed the murder, assisted by others who may have held Mr. Benn while he was stabbed or blocked him from escaping.

The Crown had a witness who said she saw in a brief glance a group of teenagers moving in a violent swirl in the area of the stairwell, but she couldn't identify any of them.

The pathologist, who was instructed to look for evidence of an assault on Mr. Benn, couldn't find any bruising consistent with someone being held or beaten. In fact, defensive wounds on his hands showed that they were free when he was attacked.

In conversation, Mr. Peterkin denied ever seeing what happened to Mr. Benn, but he said that even if he had been there, he wouldn't have intervened.

“People kill people sometimes. You can't necessarily stop it. I don't think I'd want to try. If I did, you might end up with two people dead,” he said. “It's only white people that think they can be the hero.”

Bye-bye blackbird

It's common now, in the age of Barack Obama, to talk of a post-racial society. But for Mr. Peterkin and Mr. Blake, race was still central to their world view and one of their favourite topics of conversation.

Mr. Blake, out of the blue one day, asked me how he could learn to talk to white girls. “I've never talked to a white girl. Can you believe that? You've got to show me how. … You can talk to any girl. You can be like, ‘How's your hot chocolate? Is that a nice hot chocolate?' If we said that to a white girl, she'd get all scared. It couldn't happen.”

While awaiting the verdict, the men and their families spent a tense half-hour feeding the birds outside the Eaton Centre. Four black birds were gathered around Mr. Peterkin's niece as she tossed French fries in their direction. But each time a white bird would swoop in and steal the fry before any of the black birds could eat it.

No matter how close the fry was to the black bird, the white bird's size, speed and strength stole the fry every time. The group was more and more amazed with each fry thrown in the ring.

“Look at the white guy, he's just eating everything. He won't let the black guys even get a piece,” Mr. Peterkin said.

As he walked back to court, he marvelled, “That's a life lesson right there,” he said. “No matter how much of a chance you give the black guy, the white guy always gets more. He gets to eat no matter what. Just like real life.”

The accused and their families were convinced that the trial would be affected by their race. During one break in testimony, Ms. Allen and Ms. Blake were talking about how dangerous it would be for their sons to return to the neighbourhood if they were acquitted. They weren't afraid of Mr. Benn's family – they were afraid of the police. They were adamant that the police would try to injure or kill them. I said I thought it was impossible.

“You're so naive,” Ms. Allen said.

“You're too much public,” Mr. Blake said.

This was a phrase he often used to describe me. I asked what it meant.

“You're too much a Canadian citizen,” he said. Mr. Blake had spent just one week of his life outside Ontario and 12 years in Toronto public schools, yet did not consider himself part of society.

His mother still hoped that something good could come of the trial for her son: “When you come from where we do – well, they call it the ghetto – you don't know what you can be in life,” she said. “Now that he's been through this, he's been socializing with higher people, people like lawyers, and he's starting to see what he really can do himself.

“When he gets off, and he's innocent, I don't want him to even come visit me where I'm living, not even to say hi. I want him to get out, get away, get into some kind of college program,” she said.

Mr. Blake said he and his girlfriend, Kamesha, who was five months pregnant, were going to move somewhere outside the city. They hoped that he would get a job in construction and complete his high-school diploma. He and Kamesha, who was in school and working at a call centre, had been together nearly five years.

Mr. Peterkin's girlfriend, Rhoda, often skipped school to go to the trial against his wishes. He was trying to convince her that they were no longer a couple.

They had started dating shortly before his arrest. She stood by him while he was in jail, took his phone calls and visited. She even moved into his mother's home. But Mr. Peterkin told her at the end of the trial that what they had was just “jail love.”

“But you told me – you said the words,” she said.

“You don't know about jail love? Of course the guy is going to say, ‘I love you.' He's surrounded by [dozens] of guys. When you're in jail, you just want to get as much love as you can.”

Bad bargains

Shortly after the trial began, the Crown offered Mr. Peterkin a deal: He could plead guilty to manslaughter in exchange for a sentence of nine years, 81/2 to be served in the penitentiary.

That was considerably better than life in prison, but it didn't appeal to him or his lawyer. They decided to take their chances with the jury.

No such deal was offered to Mr. Blake. His lawyers believed that he was in a much more precarious situation. Unlike Mr. Peterkin, Mr. Blake had hung around with Jerome, the person with the most powerful motive to kill Mr. Benn, for three hours before the attack. He was also on video pointing in the direction of Mr. Benn, evidence the Crown argued was part of a “quasi-military operation” to kill a suspected snitch.

Once the Crown closed its case, Mr. Blake's lawyers discussed strategy with their client.

“Shaun has a big decision to make,” said one of them, Daniel Brown. “He has to decide whether to take the stand and point the finger at some pretty dangerous people. I don't know. He's facing 25 years, but we may not need to put him up there.”

Mr. Blake came away from their meeting looking depressed, and slammed his headphones over his ears as he walked away.

He said there was no way he was going to testify, even if it meant jeopardizing his shot at freedom. He walked away alone, leaving his grandmother wondering what he was thinking.

“Shaun didn't sleep all night,” she said. “Yesterday, he just sat with his chin in his hands looking so worried, but he didn't want to talk about it.”

Neither Mr. Blake nor Mr. Peterkin called any evidence in their defence. It was a risk. Their lawyers would have to convince the jury that the Crown hadn't proved its case beyond a reasonable doubt.

Day of judgment

Regina v. Peterkin and Blake was to be Judge McCombs's last case. A mountainous figure with a craggy face and wings of snowy hair encircling a bald peak, he often expressed his irritation by letting out a long, pained exhale of breath. As the trial wore on, he seemed to grow more concerned about its direction.

“I've been a judge for 17 years. This is a disturbing case for me,” he said in the trial's last week, once the jury had been excused for the day. “The reaction [of the jury] in these gangs cases is a worry. People are fed up to their teeth with gang violence. And we therefore have to guard against verdicts that are unsupported by the evidence. Nobody wants to have as his or her legacy a wrongful conviction.”

The judge's most important task was to instruct the jury on how they should reach a verdict. He cautioned them to pay little heed to the defendants' lies to police, and warned them about the unreliability of the eyewitness evidence offered by the Crown.

Almost as soon as he had finished and the jury had been sequestered, the prosecutor leaped to his feet with a list of objections. The judge had eviscerated his evidence, he said, leaving him with nothing.

“Surely you don't want this jury to convict them purely on speculation?” the judge replied.

Outside court, the wait for a verdict began. The families sat together, praying for the best.

“Jail sucks,” said Mr. Peterkin, contemplating a future in the penitentiary at Joyceville, Ont. – a boring routine of watching daytime talk shows, sports highlights and music videos. “You get frustrated. What's the word they use for people in jail – rehabilitation? That doesn't work. People who go to jail get mad and frustrated with the world, so when they come out, they're worse. How can you rehabilitate someone over 25 years? That's ridiculous.

“Sometimes I think about my situation and I get mad. But I just think I'm not going. Not think – I know. I know I'm not going. I'll be shocked. Really shocked.”

As he waited, he played Who Wants to Be a Millionaire on a cellphone, faltering as he read the questions aloud.

Mr. Peterkin recalled all the programs he had taken part in as teenager, all the summer jobs designed to set him on a path to anywhere but here: youth programs, basketball leagues, summer camps. The free meals, the adult counsel, the city's concern for the disadvantaged children of Jane-Finch.

In an attempt to use what little power they had, Mr. Peterkin and his friends used to say that if the Centre didn't get a new basketball hoop, well, they might just turn to crime. They got the new hoop, and a new paved court as well.

Generous corporations had given them tickets to movies and sports events, tickets Mr. Peterkin often scalped outside the stadium for a measly few dollars. He had been given a summer job cleaning the garbage rooms and stairwells of the towers. He had run the recording studio donated to the Centre.

All these steps were designed to give Mr. Peterkin a shot. All these steps hadn't kept him from being sucked into a mess that put him on trial for his friend's murder.

The wait for a verdict dragged on through the first day and then the second.

By Friday afternoon, the lawyers were starting to worry about a hung jury, which would mean having to do it all over again. The call finally came as they sat in the late-afternoon sun.

The jury would deliver its verdict in 10 minutes.

Mr. Peterkin said he could barely hear over the pounding of his own heart when he re-entered the courtroom that final time. His lawyer placed a reassuring hand on his shoulder and whispered, “If it doesn't go your way, we'll appeal.”

A phalanx of sheriff's deputies stood ready to take the accused into custody. The boys' mothers and sisters held tightly to one another, some of them reciting prayers.

Finally, Juror No. 6 rose to utter the words that would shape the course of their lives.

It was a unanimous verdict of not guilty on all counts for both Mr. Peterkin and Mr. Blake.

Mr. Peterkin's mother lifted her arms to the ceiling in a prayer of gratitude. She hugged Mr. Blake's mother, who was crying.

“Thank you Jesus Christ,” she said.

“I'm so happy,” a tearful Mr. Blake said. “Mackel, we're free, we're free.”

Mr. Peterkin shook his lawyer's hand. There were tears welling in his eyes, but, in the sea of joyful noise, he was quiet.

“The justice system worked,” he said.

Accident and destiny

During the trial, I asked Mr. Blake and Mr. Peterkin if they wished they had never gone to the Grassways that day. I wondered how they could reconcile wasting two years of their lives for the sake of the no-snitching code.

Mr. Peterkin said that so many things that day put him in the wrong place at the wrong time. If the Centre hadn't been locked, he never would have gone to the Grassways. If his friend Jesse hadn't been getting a haircut, he would have been at Jesse's apartment.

“Instead I went to Connections and when I got there they had locked Shaun inside this little old laundry room – it's tiny and locks from the outside – so he was banging to get out. If I had just left him in there for a while longer, maybe none of this would've happened. But we went outside.”

“And then?” I asked.

“And then,” he replied.

For his part, Mr. Blake shrugged his shoulders. “Some people say your life is written before you're born,” he said. “I believe that.”

Mr. Osei, the community worker who has known them since they were children, said Mr. Peterkin was always withdrawn – a follower, not a leader.

Jerome, however, was a different case. A refugee from Sierra Leone, he came to Canada having seen horrors that few could imagine.

His cousin, Alpha, who also belongs to the Palisades crew, recalled seeing guns held to the head of his relatives during the civil war, people having their hands chopped off, and the bellies of pregnant women carved open. He was still haunted by those images and said he knew Jerome was too.

The trial ended on a Friday afternoon in late June. This summer, Mr. Peterkin has been trying to keep a low profile, but he has returned to Jane and Finch and made contact with some of his old friends. It will never be the same, he said – the group will forever be divided by Mr. Benn's death. He has not yet followed through on his plans to find a job in construction.

What frustrated Mr. Osei most was that all of the people involved had at some point sat down at his table to ask for his help. They had all been part of the same group; they'd grown up together.

“It isn't outsiders doing this. They're doing it to themselves,” he said. “It's one friend against another.”

Two men acquitted in 2007 Jane-Finch murder

2009-06-27T01:24:00.001-04:00

A jury has acquitted two Toronto men in the 2007 murder of Allan Benn in a northwest Toronto housing complex, leaving a courtroom awash in emotion.

Shaun Blake and Mackel Peterkin, both 20, had faced charges of first-degree murder.

"Thank you Jesus!" shouted Peterkin's mother on Friday after the jury filed out. "This is what happens when you pray!"

Family members of both mean wept and danced for joy.

"I'm speechless ... I have no words," Blake said as he walked out of the courthouse into the warm sunshine.

"The justice system worked," Peterkin said.

"This is an extremely weak case that should never have been prosecuted in the first place," said defence lawyer Daniel Brown.

Two young offenders were also charged in connection with the killing of Benn. They will be tried separately in youth court this fall. Provisions in the Youth Criminal Justice Act prevent them from being named.

The Crown had argued during the trial that the accused killed Benn for "snitching" because he had warned a man who had won $1 million in a lottery that he might be a target for robbery if he returned to the neighbourhood.

Eventually, the robbery did happen.

Benn lived with his family in the Jane and Finch area.

Security footage from April 2, 2007 -- the day Benn died -- showed the victim walking towards a youth, then following that person out of camera range.

Blake and Peterkin were evident in some of the video footage.

Less than five minutes later, Benn comes back into view and falls down.

The Crown had argued that one youth actually did the stabbing, with the other three helping him carry out the attack.

The defence argued that the Crown had failed to provide enough evidence against Blake and Peterkin.

Det.-Sgt. Frank Skubic, the lead homicide investigator on the case, acknowledged that the evidence at trial was largely circumstantial but maintained there was adequate grounds to lay the charges in the first place.

"I respect the decison of the jury. They gave careful consideration and rendered the appropriate verdict," Skubic said.

The veteran officer added that Allen Benn's father was made aware of the verdict and was "very disappointed." The family reportedly couldn't bear the emotional strain of attending court.

With files from CTV Toronto's Chris Eby

Obstruct Police

2009-04-13T00:32:00.003-04:00

Obstructing Police Charges in Toronto, Ontario.

This article reviews legal information about obstructing police charges in Toronto, Ontario. Those looking for advice on this, or any criminal charge, should consult a criminal lawyer.

Obstructing Police

It is a crime in Canada to resist or intentionally obstruct a police officer in the lawful execution of his duty.

What is the definition of “obstruction”?
The definition of "obstruction" that has generally been applied by the court occurs when a person makes it more difficult for the police to carry out their duties. It is generally not an offence to argue that the police were eventually able to carry out their duties despite the attempt to obstruct them from doing so.

What does the Crown Attorney need to prove to show a person obstructed the police?
Generally, the Crown must first prove that there was an obstructing of a police officer. They must also prove that the police officer was acting pursuant to a lawful purpose. Next the Crown must prove that the obstructing affected the officer in the execution of a duty that he was then executing, and lastly they must prove that the person who obstructed the officer did so intentionally.

Someone who unintentionally obstructs a police officer by accidentally (as opposed to intentionally) providing the officer with false information would not be guilty of this offence.

Would giving a false name or identification to the police amount to an obstruction?
It depends on the circumstances of the case. Where the police are entitled to request a person’s name, it is incumbent on that person to provide a truthful answer to the question. A false answer may constitute an obstruction. However, in some cases, the police officer had no right to request a person’s identification. In those circumstances, it can be argued that they were not “in the lawful execution of their duty” as required by section 129 of the Criminal Code. Whether the officer was in the lawful execution of their duty is ultimately a question for the judge to decide at an accused person’s trial.

Would refusing to give my identification to the police amount to an obstruction?
Once again, context is important. If a person is under a legal obligation to provide identification (such as to allow the officer to issue a valid ticket for speeding etc.) the failure to provide identification may amount to an obstruction of the police officer. However, if an officer simply demanded identification without lawful authority to do so, it would not meet the definition of an obstruction.

What is the punishment for obstructing a police officer?
It is difficult to guess at the type of punishment a person could receive for obstructing a police officer. In some cases, a person may be given a criminal record, placed on probation or given a fine. In more serious cases, or where the person has related criminal history, the punishment could amount to jail time.

If you or someone you know has been charged with obstructing a police officer, you should immediately contact a criminal lawyer to determine your best defence to this type of criminal charge. I can be reached for a free consultation at 416.297.7200.

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Retooling the war on gangs and guns

2009-04-02T08:06:00.002-04:00

Retooling the war on gangs and guns
125 suspects arrested in latest operation, but police vow to focus on worst offenders
April 02, 2009
BETSY POWELL
AND MICHELE HENRY
STAFF REPORTERS

It is almost a springtime ritual.

Hundreds of police officers from various forces fan out in pre-drawn raids across Greater Toronto and beyond to execute search warrants, arrest scores of people and lay dozens of drugs, weapons and gangsterism charges after a massive investigation that has a catchy name – in this case, Project Fusion.

A news conference follows with pronouncements made about the fruits of the law enforcement project, including the 40 guns seized yesterday, which police said will deal a "significant blow" to the firearm supply in east Toronto and make the streets safer.

As well, millions of dollars' worth of illicit narcotics, including cocaine and marijuana and ecstasy, were seized during several months of investigation, not just yesterday.

The Toronto Police Service says this time it is trying to do some things differently in its latest salvo in the war on guns and gangs.

Police Chief Bill Blair said that as the accused move through the courts a more streamlined process is planned aimed at avoiding some of the problems of previous projects that have targeted street gangs.

"The people who we arrested ... some of them are charged with less serious criminal offences so some of those people have been released or will be released over the next few days. Our intent is to ensure the detention of those people who pose a risk," Blair told a news conference at police headquarters.

In June 2007, Superior Court Judge Ian Nordheimer blasted the Crown for delays in bail hearings for nine accused street gang members caught in the Project Kryptic sweep. To show his disapproval of the delays, Nordheimer ordered the Crown to pay each of the defendants' court costs of $2,000.

Blair would not specify how many of those busted yesterday "pose a risk," but said 46 of the 125 people arrested are alleged to be members and associates of two gangs in southeast Toronto – the MNE, named for the geographic area of Markham Rd. and Eglinton Ave. E., and 400 Crew, named for the Toronto Community Housing buildings at 400 McCowan Rd.

In addition, police arrested others belonging to an "overarching criminal enterprise that supplies weapons and drugs to the street gangs." Blair said that group does not have a name but "they have been extremely well organized and sophisticated in their operation."

Police did not release any names of the people arrested yesterday.

One of the sharpest criticisms of previous projects has been that police arrest too many people and lay too many charges, many of them not serious, putting additional strain on an already overburdened court system.

Critics have also condemned such projects for being essentially public relations exercises that generate a lot of media attention because of the sheer numbers of charges laid.

"Usually these types of cases start with the police boasting about countless arrests only to see the numbers scale down drastically in the days and months leading up to trial," defence lawyer Daniel Brown said yesterday.

Yesterday's sweep did not zero in on a particular place or neighbourhood, unlike previous projects such as Kryptic, which was aimed at dismantling the Driftwood Crips in the Jane and Finch community, or Project Flicker, which targeted the Ardwick Bloods in the Islington and Finch area.

Project Fusion dovetailed two separate investigations by Toronto and Durham Region police that had, as a common "focal point," a place called Supreme Auto Group, which was identified as a "significant distribution point for firearms and for controlled substances," said Durham Regional Police Supt. Jim Douglas, who also attended the news conference.

Other police leaders in attendance acknowledged this project will not end the existence of street gangs and the associated violence.

'Unprecedented' raids jolt city

2009-04-02T08:03:00.002-04:00

'Unprecedented' raids jolt city
125 Arrested

Melissa Leong, National Post; With files from Shannon Kari, National Post and Global News

Police have arrested 125 people, including the alleged leaders of a "sophisticated" criminal enterprise that supplied drugs and guns to street gangs, after pre-dawn raids throughout the Greater Toronto Area yesterday.

"This is an operation of unprecedented scale," Toronto Police Chief Bill Blair told reporters.

"Nearly 1,000 officers from right across Ontario were involved in the execution of those warrants today."

The suspects and their neighbours were jolted awake yesterday beginning at about 5 a. m. when tactical units busted into homes, allegedly seizing guns and drugs. The investigation, dubbed Project Fusion, was led by the Anti-Guns and Gangs Task Force, which brings together a team of Crown attorneys and police.

Chief Blair said police focused on two street gangs: MNE (named after the Markham Road and Eglinton Avenue East area) and the "400 Crew" (which takes its name from 400 McCowan Rd.) They also arrested individuals involved in an "over-arching criminal enterprise," Chief Blair said.

"[The enterprise] exercised a great deal of influence and control over street gangs and supplied drugs and guns to them," he said. "They don't have a name but they have been extremely well organized and they are sophisticated in their operation."

Officers seized 40 firearms and drugs including 43 pounds of cocaine and more than 30,000 tablets of Ecstasy.

Four of the guns seized were stolen from a legal handgun owner a few months ago, Chief Blair said. Most of the firearms had been smuggled from U. S. states including Georgia, Michigan and Texas.

The investigation began last year. In May, Durham Regional Police were probing a shooting near Brock Road and Bayly Street in Ajax. Officers say that they were drawn to activities at the Supreme Auto Group shop at that corner and discovered that Toronto's Guns and Gangs Task Force was also investigating the premises.

It was identified as a "significant distribution point for firearms and controlled substances," Chief Blair said.

Project Fusion is the latest in a series of major police operations targeting alleged gang activity in the city. Defence lawyer Daniel Brown suggested that police often arrest more people than necessary during these types of operations.

"They cast this huge net on the entire community. Slowly but surely they cut [certain people] loose but not before they have been tarnished with a reputation that they are a gang member," said Mr. Brown, who has represented several individuals arrested during high-profile raids.

"The reality is this overwhelms an already overwhelmed system. It creates a huge amount of delay in the Toronto courts."

Chief Blair told a press conference yesterday: "We're not trying to clog up the courts. We're not trying to clog up the detention facilities. What we are trying to do is hold people accountable for their conduct ... but also to protect our communities."

He acknowledged that those charged yesterday with lesser offences would soon be released on bail. "It is our intention to seek only the detention of persons who we believe represent a significant threat to the security of our communities or a flight risk."

Toronto defence lawyer John Struthers has also represented defendants in the street gang probes in Toronto and is skeptical that they successfully result in the prosecution of high-level criminals.

"There will be young people standing in line to replace those arrested today. Kicking in 100 doors isn't going to mean more people will come forward on the next homicide," he said.

Yesterday, individuals were cleaning up the aftermath of the raids. One woman who did not want to be named led reporters around her sixth floor apartment unit at 3171 Eglinton Ave. E., where clothing was strewn everywhere.

"Look at this," she lamented. "This is how they treat the poor people."

Tina Jaunvin said a loud bang woke her husband just before 5 a. m. "That turned out to be the battering ram on the house next door," she said.

The family watched as many as 10 armed officers search the neighbour's bungalow for hours. They removed bags and boxes and arrested a teenaged resident.

"It was scary but it [felt] safe because you know there's a lot of police around," said Mrs. Jaunvin who has lived on Sedgemount Road, in the Markham Road and Lawrence Avenue area, for 22 years.

"This is a quiet neighbourhood. I've never had any bad experiences with [the people] next door."

---------

PROJECT FUSION, BY THE NUMBERS

125 people arrested

100 homes raided

61 vehicles searched

1,000 officers involved

38 police tactical units involved

34 handguns seized

2 loaded AK-47s seized

1 MAC-11 machine pistol seized

1 sawed-off shotgun seized

2 rifles seized

43 pounds of cocaine seized

65 pounds of pot seized

30,000 tablets of Ecstasy seized

$431,000 in criminal proceeds seized

12 motor vehicles seized

Fail to Appear for Court

2009-03-02T03:21:00.005-05:00

This article is a brief and general overview reviewing legal information about failure to appear charges in Toronto, Ontario (aka. What happens when I miss my court date?). Those looking for advice on this or any criminal charge should consult a criminal lawyer.

Generally, it is a criminal offence to fail to appear in court as directed by a judge or to fail to appear for fingerprints and photographs as directed by a police officer pursuant to a valid court order.

What if I forgot my court date? Am I still guilty of failing to appear?
No. The act of failing to appear for court or at the police station for prints and photographs must be intentional. Therefore the crown must prove that you KNEW you had to attend and you chose not to. Forgetting your court date (even if you were negligent by not writing the date down etc.) will not meet the standard necessary for a conviction.

What If I intended to miss my court date but I had a really good reason for doing so?
In some circumstances, the court will accept a lawful (read: very good) excuse from an accused person as to why they missed their court date. Attending a job interview or being “hung over” are not likely considered lawful excuses. A lawful excuse usually requires that it would have been impossible for the accused person to attend the appearance. An example of a lawful excuse might be that the accused person was in the hospital with a significant medical condition that prevented them from being able to attend the court appearance. Another example of a lawful excuse may be that the accused person was in jail on another charge and couldn’t physically attend the appearance as required.

What happens if I just realized that I missed my court date? What do I do now?
What usually occurs when a person misses court is that the judge issues a warrant for their arrest. In the circumstance when the person misses their appearance for photographs and fingerprints, the police will issue the warrant.

Is it possible to have the warrant for my arrest for failing to appear cancelled?
It is possible (depending on when the warrant was issued) to have the warrant cancelled. Usually after two or three days, it will no longer be possible to have the warrant cancelled by the judge. In this instance, the defence lawyer will make arrangements to have the accused person surrender themselves to police to have the warrant processed.

If I surrender myself, will I still be charged with failing to appear in court?
Not necessarily- in some instances, a defence lawyer may be able to convince the police officer that the accused person simply forgot the date of their appearance and that the charge of failing to appear in court should not be laid.

What will happen to me after I surrender myself to the police for failing to appear?
In almost every instance, a person charged with failing to appear will be required to attend the police station for processing and will then be brought to the courthouse for a bail hearing. If a charge of fail to appear has not been added by the police officer, the accused person will likely be released back on the terms of their previous release associated to their underlying offence (for which they failed to appear). In other cases an accused person may have to go through the process of obtaining bail on the new charge and also risk the possibility of losing their bail on the underlying charge for which they failed to appear.

What are the penalties for failing to appear in court?
In some cases, it is possible to be found guilty of failing to appear and not receive a criminal conviction. However, many judges will impose jail sentences up to a maximum of six months for the offence. Regardless of what the penalty is, a finding of guilt for failing to appear in court will be a significant factor at any future bail hearing when deciding whether or not the accused person should be released on bail.

If you or someone you know has been charged with failing to appear for court, you should immediately contact a criminal lawyer to determine your best defence to this type of criminal charge. I can be reached for a free consultation at 416.297.7200.

Fail to Comply with Bail

2009-03-02T03:19:00.004-05:00

Generally, it is a criminal offence to violate any valid condition on a recognizance of bail, undertaking to a police officer, probation order, or peace bond.

What does the crown need to prove in order to establish the offence of failing to comply?
To establish guilt, the crown must prove that the accused was bound by the order setting out the condition (meaning that the court order hadn’t yet expired), the accused breached the condition set out in the order, and that the accused person intended to violate the condition in the order. Therefore, if the accused accidentally violated a condition of his bail he would not be guilty of the offence.

For example, if the accused was required to remain 500 metres from a specific address and was found 480 metres from the address, it may be open to him to argue that he wasn’t aware he had breached the distance condition of his bail. If believed, the accused would be found not guilty of the offence.

What if I had a good reason for violating my bail condition?
In some circumstances, it may be impossible for an accused person to comply with a condition of his/her bail. For example what if the accused was not permitted to leave their residence after 11:00pm and at 12:00am, the accused got very ill and had to go to the hospital? In this instance, the court may accept that notwithstanding the fact that the accused was in violation of their bail condition to remain inside, they had a reasonable excuse for leaving and would therefore be found not guilty. In such circumstances, it is for the accused to convince the judge on a balance of probabilities of the validity of the excuse in order to be found not guilty.

What if I was violating my bail condition and I don’t have a good reason for doing so? Should I just plead guilty?
Quite often, the Crown Attorney is unable to prove that an accused person was actually violating their bail condition as alleged by the police. Sometimes the Crown is missing the proper witnesses to prove the case while there are other times where the Crown does not have the required documents necessary to establish that the accused person was on a bail in the first place. Pleading guilty to this type of offence can not only lead to a jail sentence (even for a first time offender) but it can also be a significant factor in denying bail for a future offence (since it will be proven that on a prior occasion, the accused person did not comply with a condition of their bail and are therefore likely to disregard future court orders in the same manner). A decision to plead guilty should not be made until the accused person has reviewed all of the evidence in the case with his defence lawyer to determine what, if any defences to the charge, are available to him.

What if my constitutional rights were violated? Will I still be found guilty of the offence?
In some circumstances, the fact that the accused person was illegally stopped and searched by police which lead to the discovery of the bail violation may in fact be a possible defence to the charge. I have represented a number of accused persons who have been found not guilty of violating their bail conditions, notwithstanding the fact that technically they were doing something their bail prohibited them from doing. Ultimately, if the police had no legal basis for detaining and questioning the accused, the Court will generally rule that the evidence derived from the illegal encounter should not be used as evidence in the trial. Quite often, without this evidence, the Crown Attorney is unable to prove the case.

If you or someone you know has been charged with failing to comply with bail or other court order, you should immediately contact a criminal lawyer to determine your best defence to this type of criminal charge. I can be reached for a free consultation at 416.297.7200.

Possession of a Weapon for a Dangerous Purpose

2009-03-02T03:14:00.003-05:00

It is an offence in Canada to possess a weapon for a purpose dangerous to the public’s peace or for the purpose of committing a criminal offence.

What is a weapon?
There are some items such as “firearms” and a list of other illegal objects including brass knuckles or cross bows that will always meet the definition of a weapon in law. Other items, such as a pocket knife or hunting knife require that the item be, “used, designed to be used or intended for use in causing death or injury to any person or for the purpose of threatening or intimidating any person” to meet the definition of a weapon. The Crown Attorney must prove that the item meets this definition or fall within a list of prohibited weapons in order to establish that the item is a weapon.

What is considered a purpose dangerous to the public’s peace?
A purpose dangerous to the public’s peace includes a disruption of the “normal state of society” and a disturbance of “the general peace and order of the realm as provided for by law”. It is an, "unquiet and harmful behaviour towards the Queen and her people" according to various legal definitions.

What if I am not found with the weapon in a public place?
The possession by the accused of weapons in their own home or a private place does not preclude a finding of a purpose dangerous to the public peace. This is so even if there is a use of the weapon giving rise to the charge, which use takes place entirely in private.

What if I was extremely intoxicated at the time I possessed the weapon? Is intoxication a defence to this offence?
The Crown must show that the accused person not only possessed the weapon, but also possessed it with the added purpose of disturbing the peace or committing a crime. If the accused was too intoxicated to form the specific intent required to commit the full offence, he will be found not guilty.

What if I originally possessed the weapon for a lawful purpose but later used it as a weapon? Will I be found guilty of the offence?
A person who uses an item they otherwise lawfully possessed as a weapon may not be found guilty of possession for a dangerous purpose (however they may be found guilty of another offence such as assault with a weapon). Unpremeditated use of a weapon otherwise possessed for a lawful purpose does not necessarily reflect possession for a purpose dangerous to the public peace.

Is it okay for me to possess a weapon for self-defence?
There is no clear answer to this question. Some courts have held that the possession of a weapon solely for self-defence reasons does not trigger the offence of possession for a purpose dangerous to the public. However, this view is not unanimous and many trial judges have come to the exact opposite conclusion. Ultimately, this becomes a very fact specific analysis.

Can I argue that I was illegally searched by the police?
Many cases of possession of weapons are won on the basis that the evidence obtained by the police are excluded from evidence at trial as a result of an illegal search, stop or interrogation by police officers which lead to the discovery of the weapon. I have won a number of cases for clients using this type of argument.

What are the types of punishments I can face for this type of offence?
The sentences for possession of a weapon dangerous to the public can range to a maximum 10 years in prison if the Crown proceeds by indictment or a maximum six months in jail if the crown proceeds by summary conviction. Notwithstanding these penalties, the reality is that a first time offender or someone with a minor record may be able to avoid jail or a criminal record altogether with the right representation.

If you or someone you know is charged with possession of a weapon for a dangerous purpose, you should immediately contact a criminal lawyer to determine your best defence for this type of criminal charge. I can be reached for a free consultation at 416.297.7200.

Communicating For the Purpose of Prostitution

2009-03-02T03:10:00.004-05:00

Is it a crime in Canada to engage in prostitution or to obtain the sexual services of a prostitute?

Yes. Either stopping or attempting to stop a person in order to communicate for the purpose of prostitution or alternatively, communicating or attempting to communicate for the purpose of prostitution will be sufficient to ground a conviction for the offence. This means that both the prostitute and the person seeking the prostitute’s services can be found guilty of this offence.

What if I wasn’t successful in my attempt to obtain a prostitute’s services?
It is not necessary to be successful in one’s attempt to communicate for the purpose of prostitution. Merely attempting to communicate with a prostitute is sufficient to be convicted of the offence.

What if I was asking the prostitute how much s/he charged out of curiosity and NOT with the intention to solicit their services as a prostitute?
The Crown must prove as a fact that it was the intention of the accused person to solicit services for the purpose of prostitution. The accused must be “serious”. S/he must mean what s/he says and be willing and ready to carry out the transaction. Simply being curious or joking is permitted under the legislation and is not evidence of the required intention to communicate for the purpose of prostitution.

Can I be found guilty if I tried soliciting an undercover officer who wasn’t actually a prostitute?

The act of solicitation does not only apply to prostitutes, but to all people. Therefore, one can be found guilty of the offence of prostitution even if the person they were attempting to solicit to have sexual activity was an undercover officer.

Must there be a monetary transaction for the offence of communicating for the purpose of prostitution to be completed?
No. Money does not have to be tendered for the offence of communicating for the purpose of prostitution to be complete. All that is required is an intention to engage in the sexual act. Discussion of money and the ability to pay are only some of the factors the court will consider when determining whether a person actually had the intention to communicate for the purpose of prostitution.

What will happen to me at court if I am charged with this offence?
In some cases, a first time offender may be eligible to participate in a counseling program, which, if successfully completed will result in a withdrawal of the charge by the Crown attorney. These types of programs are often referred to as “diversion” programs as they are created to divert accused persons out of the justice system without criminal records.

What type of program must I attend (assuming I am eligible) and how is eligibility for the diversion program determined?
The diversion program an accused person is required to attend before their charge of communication for the purpose of prostitution is withdrawn is usually a one-day session, which discusses the risks associated with this type of criminal behavior. The program itself costs several hundred dollars (approximately $500 depending on the courthouse). Typically, those who do not have prior criminal records or related arrests will be eligible for this diversion program. Eligibility is determined by the Crown Attorney’s office- usually with the assistance of a criminal defence lawyer acting on the accused person’s behalf.

If I am eligible for and complete the diversion program, will I have a criminal record?
No. This type of counseling program was created to ensure that if an accused person successfully completes the program they would not have a criminal record of any kind.

What if I am not eligible for the diversion program?
At this stage, an accused person will have to decide based on the evidence whether or not they wish to take the case to trial or plead guilty.

What are the possible penalties for communicating for the purpose of prostitution?
An accused person may be given a range of sentence starting with a discharge (not considered a criminal record) all the way up to six months in jail depending on the seriousness of the offence, the criminal record of the accused person and a number of different factors the judge will consider at the time of sentencing.

If you or someone you know is charged with communication for the purpose of prostitution, you should immediately contact a criminal lawyer to determine your best defence to this type of criminal charge. I can be reached for a free consultation at 416.297.7200.

Mother cleared in gang probe

2009-01-29T20:05:00.004-05:00

Crown withdraws more accusations against those arrested in raid on alleged MS-13 members

Jan 27, 2009 04:30 AM
BETSY POWELL
COURTS BUREAU

The Crown has withdrawn more than 30 drug-related charges against a young mother arrested as part of last year's high-profile takedown of suspected MS-13 gang members.

Rosa Martinez-Cabrera, 24, spent more than five months in pre-trial custody, leaving her baby in the care of her in-laws, before she was released last fall.

Yesterday, the woman shook her head and declined to comment as she pushed a baby stroller outside the Old City Hall courtroom.

"I should sue," she said to her lawyer, Daniel Brown.

Brown said the circumstances are unfortunate, since Martinez-Cabrera spent "close to six months in pre-trial custody, a young child was taken out of her arms, and they fought her at all stages for her release."

Then, in the end, the Crown "realized they didn't have a case."

Her boyfriend, Douglas Moreira, 28, yesterday pleaded guilty to one count of possession of cocaine for the purpose of trafficking.

Judge Robert Bigelow sentenced Moreira to 24 months in prison, but gave him two-for-one credit for the eight months he had spent in custody, so Moreira must serve an additional eight months.

Both Martinez-Cabrera and Moreira forfeited claim to $30,000 seized during the raids; Brown told court there is no admission the money belonged to either of them.

Federal prosecutor Antoinette Issa also withdrew charges against another co-accused yesterday.

Now only one accused remains in what defence lawyers say is the embarrassing collapse of the case that made headlines in 2008, when Toronto police said they had taken steps to dismantle a local faction of the MS-13, one of the world's most vicious gangs.

"Gang investigators have stamped out the first wisps of smoke signalling the arrival of a notoriously violent street gang with U.S. and Central American roots," said a Toronto police news release.

"It was a lot more talk than actual show on the part of the police," said Brown.

"Where is it? Where is the gang they brought down? ... This was police officers rushing an investigation here, far below the standards that could possibly meet a conviction for participating in a criminal organization."

In a series of pre-dawn raids last June, Toronto police arrested 17 people they suspected of belonging to the Central American criminal organization.

Five were charged with plotting to kill a jail guard at Toronto West Detention Centre, but last fall the Crown stayed the murder conspiracy charges against four of the accused.

The Crown has also stayed the charges against the four of uttering death threats and belonging to a criminal organization.

Report laments legal aid snag

2008-11-29T23:09:00.002-05:00

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

2008-11-20T12:13:00.004-05:00

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

2008-11-17T19:25:00.002-05:00

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

2008-07-28T17:33:00.002-04:00

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?

2008-07-23T23:33:00.003-04:00

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

2008-07-22T08:37:00.003-04:00

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

2008-06-30T21:12:00.007-04:00

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;

(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

2008-06-30T21:10:00.003-04:00

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

2008-06-30T21:08:00.005-04:00

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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Impaired Driving Charges in Toronto

2007-11-21T15:31:00.006-05:00

Drinking and Driving and Impaired Driving

Being charged with “drinking and driving” is a criminal matter in Canada governed by the Criminal Code. This article is a brief and general overview providing legal Information on Drinking and Driving, Impaired Driving, Over 80 and Refuse Breath Sample charges in Toronto, Ontario. Those looking for advice on a drinking and driving charge should consult a criminal lawyer.

What is drinking and driving?
Driving while impaired by alcohol, driving with more than 80 milligrams of alcohol in 100 millilitres of blood (Over 80) or refusing to provide a breath sample are all examples of drinking and driving offences in Canada.

What are the penalties for drinking and driving?
The Criminal Code provides a minimum fine of $600 for a first offence in addition to a criminal conviction registered on your permanent record. Subsequent drunk driving convictions carry minimum jail penalties beginning with 14 days in jail for a second conviction. A drinking and driving conviction will also require a mandatory driving prohibition preventing a prohibited driver from driving anywhere in for a minimum of one year, or three months in a province such as Quebec or Alberta that has an concurrent ignition interlock program. Ontario does not currently participate in an ignition interlock program.

In addition to the penalties mandated under the Criminal Code, a conviction for drunk driving will also drastically affect your motor vehicle insurance coverage and premiums. In Ontario, you will probably be required to insure with Facility Association, which insures high-risk drivers and exacts high premiums. For each of the three years following your conviction, Facility Association will levy a 100 per cent surcharge atop your premiums. It will impose more surcharges, up to a maximum of 250 per cent, for other convictions relating to the same incident, such as careless driving or failing to remain at the scene of an accident. Each insurance company has its own conviction surcharge schedule.

What is the difference between impaired driving, over 80, and refusal to provide a breath sample?

Impaired Driving
In order to establish an impaired driving charge, the Crown must prove that the driver’s ability was impaired by alcohol or a drug. Evidence of impairment may be proven by a combination of driving observations and physical observations of the driver. Evidence of erratic driving, weaving, crossing of the centre line or evidence of a motor vehicle collision may all be used to support an inference of impaired driving. Personal observations tending to reveal signs of impairment may also be relied upon, including: an odour of alcoholic beverage emanating from the driver’s breath, bloodshot eyes, dilated pupils, unsteadiness or slurred speech.

Over 80
Unlike impaired driving, the offence of “over 80” does not require proof of impairment of any kind, only proof that the driver had a concentration of alcohol in their blood exceeding 80 milligrams of alcohol in one hundred millilitres of blood. This alcohol concentration reading is usually determined from an analysis of breath samples obtained by police and processed with a breathalyser machine capable of providing such results. These results can also be obtained by testing a sample of the driver's blood.

Refuse to Blow or Refuse to Provide a Breath Sample
The offence of refusing to provide a breath sample, either for the roadside screening device or an approved breathalyser machine at the police station is another drinking and driving offence. The consequences of a conviction on only this charge are essentially the same as those for a conviction on impaired driving or over 80, namely, a criminal conviction, driving prohibition, license suspension and the same insurance consequences.

A person convicted of refusing to provide a breath sample may also be convicted of driving while impaired. However, the rules of double jeopardy prevent convictions for both over 80 and impaired driving arising out of the same incident.

Stopping a Motorist - From traffic stop to conviction:
In Canada, provincial driving legislation such as the Highway Traffic Act in Ontario, enables police to stop and investigate drivers for drinking and driving offences. Police may also set up stop checkpoints to pull vehicles over for the purpose of checking for signs of drunk driving, known as R.I.D.E. (Reduce Impaired Driving Everywhere).

This power to investigate a driver of a motor vehicle regarding their sobriety does not permit an officer to demand a roadside breath test. In order to require a person to submit to a roadside breath test, the person under investigation must be operating or “in care or control” of a motor vehicle at the time of investigation AND the officer must reasonably suspect the person under investigation has alcohol in his or her system.

The officer may have a reasonable suspicion the person has alcohol in their body if they admit to have recently consumed alcohol or if the person under investigation demonstrates visible signs of impairment. Once the officer reasonably suspects a person to have alcohol in their system, they may require a driver to provide a sample of their breath for testing. In some instances, the failure of police to establish they had grounds to suspect alcohol had been recently consumed may amount to a defence to an over 80 or refuse breath sample charge because the unlawful breath demand would invalidate the subsequent test results.

The roadside screening test results will either return a “pass”, “warn” or “fail” result. The machine is usually calibrated to fail when a person has over 100 milligrams of alcohol in 100 millilitres of blood.

Failing the roadside test will not in and of itself support a conviction for over 80. Evidence of a failed reading is not proof of the level of alcohol in the person’s blood. It is only used to justify a further demand for a sample of breath into an “approved instrument” capable of providing a proper reading of the person’s blood alcohol level.

A “fail” result on the roadside breath test will permit an officer to arrest the driver for the offence of over 80. An arrest for over 80 may also be accompanied by an arrest for impaired driving if the driver exhibits clear signs of impairment by the manner they were driving the vehicle or physical observations of the driver under investigation.

Can I speak to a lawyer before I give a breath sample?
Upon arrest or detention, an individual is entitled to consult with a lawyer for the purpose of obtaining advice about their situation. Everyone on arrest must also be advised of the availability of a 24-hour toll-free legal aid number for those who do not have a lawyer to call but wish to obtain legal advice. If the police fail to advise a person under arrest of these constitutional rights, or fail to provide the person under arrest an opportunity to contact counsel, the failure to do so may result in the exclusion of the defendant’s alcohol level readings obtained at the police station. This exclusion of evidence would likely result in an acquittal at trial.

The right to consult with counsel is not an absolute right at the time of a roadside demand for a breath sample (as the accused is not under arrest at this time). Recent case law developments suggest that in some circumstances, a person required to provide a roadside breath sample may have a right to consult with counsel prior to providing a breath sample. In some instances, the failure to permit consultation with a lawyer prior to providing the sample may result in the exclusion of the sample and any subsequent evidence. Each situation is fact specific. An experienced criminal lawyer who regularly defends drinking and driving cases will be able to provide you with an opinion on whether or not your constitutional rights have been violated by the police during the course of their investigation.

Drinking and Driving Defences
There are a number of ways to defend against allegations of drinking and driving. The defences to these types of allegations vary, from challenging the accuracy of the machine receiving the breath sample, to challenging the officer’s belief for demanding the sample in the first place. Other defences may be raised based on the denial of constitutional rights prior to the taking of breath samples.

The area of drinking and driving case law is extremely complex and it is difficult to summarize all of the important aspects of the law in a short article. Given the numerous consequences of a drinking and driving conviction, it is important to consult with a lawyer in order to identify possible defences to the allegations. For a free initial consultation, call me at 416.297.7200 to discuss your case.
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Criminal Assault Charges in Canada

2007-11-18T23:32:00.001-05:00

Criminal Assault in Canada - http://www.yourbestdefence.com/

What is an assault? The definition of assault is found in the Criminal Code at section 265. Generally an assault occurs when a person directly or indirectly applies force intentionally to another person, or who attempts or threatens to do so without consent.

What degree of force is required? A person need not harm someone for an assault to occur. An accused may commit an assault although he exerts no degree of strength or power when touching the victim. The force however must be offensive or an affront to an individual's dignity. A push or pinch may be sufficient to establish an assault.

What if I accidentally hit someone? The application of force must be intentional. Accidentally hitting someone during the course of an epileptic seizure, for example, would not constitute an assault. However accidentally hitting one person in an attempt to hit another is not a defence to assault. It does not matter who the intended victim is, as long the offender intended to apply force to any individual, it is still an assault.

What is the difference between an assault, an assault with a weapon, an assault causing bodily harm and an aggravated assault? The difference between an assault and an assault with a weapon is the vehicle used to deliver the force. Generally an assault or “simple assault” is caused by the application of force from a person’s extremities such as hands, legs or feet. An assault with a weapon generally involves the application of force with an inanimate object such as a stick, bat, knife or object thrown and can even be delivered by something other than an inanimate object including a dog ordered to attack a person.

The difference between assault, assault causing bodily harm and aggravated assault is the harm suffered as a result of the application of force. An assault that causes any hurt or injury that is not transient or trifling in nature and interferes with the complainant’s health or comfort will meet the definition of bodily harm. In order for an assault to meet the definition of an aggravated assault, the injury must be much more substantial.

Any sort of injury that wounds, maims, disfigures or endangers the life of another meets the definition of an aggravated assault.The amount of harm caused by an assault will likely dictate the type of sentence imposed by the judge. While some “simple assault” charges may not result in any jail time, an aggravated assault charge may result in a sentence amounting to several years in jail depending on the severity of the injuries inflicted on the complainant.

Defences to Assault

Consent - For an assault to have occurred, the Crown must prove that the application of force by the accused person was done without the consent of the party to whom the force was applied. Consent may be express or implied. It many instances, consent is implied and this may be determined from the circumstances surrounding the offence. Generally there is an implied consent to pat a co-worker on the back or shake hands with a relative stranger. However, fraudulently-obtained or forcefully-extracted consents and are really no consents at all. In addition, no one may consent to being killed or seriously injured. A consent to a fight does not normally imply permission to inflict significant bodily harm. Thus where the offender intends, or actually causes, significant harm or death, consent is not a defence.

Mistake Belief in Consent - Even if the Crown proves that consent did not actually exist, it is still available to the accused to argue that they honestly believed the aggrieved party had consented to the application of force. An honest but mistaken belief in consent will also afford a defence to an assault charge.

Self-Defence - The law recognizes that a person is justified in using force or threatening force in certain circumstances to protect either themselves, close family members or property. The basic rule permits the use of force if the force is reasonable in the circumstances. Whether the use of force is reasonable is entirely fact specific and can depend on a number of different factors.It is important to remember that every allegation of assault is a fact specific inquiry.

Consulting a lawyer will assist you with identifying potential defences to this type of allegation. I can be reached at 416.297.7200 to discuss your situation. For more information please consult my website at http://www.yourbestdefence.com/.

The Criminal Pardon Process in Canada

2007-11-18T23:20:00.004-05:00

The Criminal Pardon Process in Canada - http://www.yourbestdefence.com/

What is a pardon? A pardon is a government act that seals or expunges a criminal record. Is there more than one type of pardon? Canada has essentially two types of pardons. One is a “free pardon” and one is a “conditional pardon”. Both the Criminal Records Act and the Criminal Code provides for the granting of “conditional pardons”, but a “free pardon” can only be obtained under the Criminal Code provisions.

Under the Criminal Code, the power to grant both free and conditional pardons is essentially the prerogative of the Government of Canada, allowing the Cabinet to exercise an unfettered discretion. As such, the granting of a pardon under this section of the Criminal Code is rarely, if ever, used. More commonly a conditional pardon is granted under the Criminal Records Act.

What is the difference between a free pardon and a conditional pardon? When an individual receives a free pardon, "that person shall be deemed thereafter never to have committed the offence in respect of which the pardon is granted”. Thus a recipient of such a pardon may rightfully answer that he or she has never been convicted of the pardoned offence. For adults, all other pardons, including pardons under the Criminal Records Act are conditional pardons, meaning they do not nullify the original conviction.

When is a pardon available? The National Parole Board has exclusive jurisdiction to grant pardons under the Criminal Records Act. As long as the applicant meets the criteria set out in the act, he or she will receive a pardon under the act. The criterion for eligibility depends on the type of offence to be pardoned. Two different waiting periods apply; five years for an indictable offence and three years for a summary offence.

For summary offences, a pardon is available if the offender has not been convicted of an offence under “an Act of Parliament or a regulation made under an Act of Parliament” during the three year period from the date the sentence is completed. For indictable convictions, the waiting period is five years from the date the sentence is completed. In addition, the Applicant must also be of good conduct during that five year period in order to be eligible for a pardon for an indictable offence.

When is a sentence considered “completed”? A sentence is not completed until all terms of probation have expired as well as the payment of any fines or restitution orders. In calculating the period, a jail sentence is considered to end only on the expiration of the stated period of the sentence and not when the offender is actually released. Thus it is impossible for somebody serving a life sentence to be eligible for a pardon even if they receive parole.

What is the advantage of a pardon? According to the Criminal Records Act, a pardon under the act is evidence of the fact the conviction "in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant's character" and except if revoked, "vacates the conviction in respect of which it is granted" and for most purposes, "removes any disqualification to which the person so convicted" would be subject. For immigrants and potential immigrants, a pardon removes a potential obstacle to becoming a Canadian citizen or landed immigrant.Another advantage is that federal government records concerning convictions for pardoned offences must generally be kept separate and cannot be disclosed. The principle advantage to a pardon relates to employment and access to educational and other institutions for which a criminal record might be an impediment. The act prohibits application forms that require an individual to disclose a pardoned record.

Can a pardon be denied? The National Parole Board can deny an applicant on the basis that the applicant is found to be not of good conduct. However, applicants may reapply after one year.

Will my employer know about my application for a pardon? Maybe. In some instances, The National Parole Board may make inquiries with the applicant's employer about their character.What are the limitations to a grant of pardon? A conditional pardon under the Criminal Records Act does not remove the fact that a person was convicted. Thus foreign governments will normally not recognize such a pardon. As well, consequent prohibitions arising from a conviction, for instance, prohibitions on possession of a firearm or on driving are not affected by a pardon although the period of the prohibition is not used in calculating the waiting period. A free pardon may be recognized by foreign governments.

Can a pardon be revoked? Only a pardon under the Criminal Records Act is subject to revocation. Such a pardon is automatically revoked by a subsequent conviction for an indictable offence. Otherwise, the National Parole Board has the discretion to revoke a pardon on a hearing with notice to the applicant when the person is:

Convicted of a summary offence;
On evidence the person is no longer of good character; or
If satisfactory evidence establishes the individual obtained the pardon by knowingly making a false representation or knowingly concealing a material particular.

This type of revocation is not automatic and the subject party may be able to make representations in writing or orally that the pardon should stand. Evidence that a person is no longer of good character might be furnished by a conviction in another country or perhaps by other means.

Do I need a pardon for a discharge? Conditional and absolute discharges do not require a pardon. Absolute discharges granted after July 24, 1992 will automatically be removed from a criminal record after one year. A conditional discharge will automatically be removed after three years. How do I get a pardon? A pardon is only available on application to the National Parole Board. You may complete the application on your own or are entitled to retain a lawyer to assist you. The board processes about 10,000 applications a year and the backlog of cases may mean that an application will take as long as two years to process. An incorrectly completed application may substantially delay the process.

If you would like further information about a criminal pardon call me at 416.297.7200 or visit my website at http://www.yourbestdefence.com/.

Criminal Court Procedure in Canada

2007-11-14T23:23:00.004-05:00

Criminal Court Procedure in Canada

Generally, every person charged with a criminal offence in Canada will go through a similar procedure. Outlined below is some of what you can expect to happen during the course of a criminal charge.

The First Appearance in Court

After being charged with a criminal offence, a police officer has the discretion to hold you for a bail hearing or release you from the police station. To learn more about the bail hearing process, read The Bail Hearing Process. whether or not you are held for bail or released from the police station, you will be required to attend court on a certain date and time.

This appearance in court is sometimes referred to as your “first appearance”.

Do I need a lawyer to attend my first appearance in court? Prior to your first appearance, you can retain a lawyer to attend court with you or even to attend your court appearances on your behalf- depending on your retainer agreement. Your lawyer is there to speak for you, so you don't have to worry about saying the wrong thing. In most courthouses, the Crown Attorney will give priority to the cases where a lawyer is present in court PRIOR to dealing with any cases involving unrepresented accused persons. Many accused persons retain lawyers prior to their first appearance in court.

Who will be at court on my first appearance? Your first appearance is NOT your trial. None of the witnesses or police officers involved in your case will be there. It is NOT an opportunity to tell the judge your side of the story. The central purpose of your first appearance in court will be to obtain the details of the allegations against you.

Any evidence the Crown intends to use against you at your trial MUST be disclosed to you in advance. This procedure is called “disclosure”. Your “disclosure” may include, police or other witness statements, surveillance videos, photographs or any other type of evidence that relates to your case. The Crown must disclose ALL relevant materials to you, regardless of whether they assist the Crown's case or not. Evidence in the Crown's possession that points towards your innocence must also be disclosed to you.Obtaining full disclosure in your case is crucial as “disclosure” will tell your lawyer almost everything they need to know about the strength of the Crown's case against you and how they can best defend you against the charges you are facing.

Quite often, disclosure will not be provided on your first appearance in court. If disclosure is not available, you (or your lawyer on your behalf) will have to return to court on another occasion to obtain it from the Crown. The nature and complexity of the allegations will usually dictate how quickly disclosure is provided. The more serious or complex a case is, the longer it usually takes to obtain the disclosure.

Second Appearance and Subsequent Court Appearances

If disclosure is not provided to you (or your lawyer) at the first court appearance, you will have to return to court a second time (or possibly a number of times) in order to obtain it. Nothing meaningful can be done in your case without disclosure. However once disclosure is received, the next step is to discuss the case with a Crown Attorney. This step is often referred to as a “crown pre-trial” or “crown resolution meeting”.

Crown Pre-trial/ Resolution Meeting

The pre-trial/resolution meeting between your lawyer and the Crown Attorney usually takes place over the telephone after disclosure has been received and reviewed by your counsel.Typically what is first discussed at this meeting is whether or not the Crown intends to proceed on the charges as laid. In the event they wish to continue the prosecution, the Crown and defence lawyer may discuss whether the accused person will be pleading “guilty” or “not guilty”.

A “not guilty” plea will likely result in a trial. If the accused person intends on pleading “guilty”, the Crown will usually outline the charge or charges they require the accused to plead guilty to, the facts surrounding the allegations to be accepted as part of the guilty plea and what the appropriate sentence may be. If the case will be heading to trial, the Crown and defence lawyer may discuss which witnesses are required for trial and may estimate the length of trial time required to hear the matter so an appropriate trial date can be obtained.

Depending on the complexity of the case, or whether or not defence counsel and the Crown can agree on the resolution position, one of the parties may request a judge to become involved in the pre-trial discussions and act as a mediator. This meeting with the judge is referred to as a “judicial pre-trial”.

Judicial Pre-Trial

In some cases, either the Crown or defence counsel may request the assistance of a judge during the pre- trial discussions. A judge may give their opinion on the merits of the case in an attempt to sway one side or the other towards a fair compromise. A judge may also give their opinion on an appropriate sentence in the event of a guilty plea or assist with estimating the duration of time required should the case go to trial. It is often a strategic decision to involve a judge in pre-trial discussions. Every case is fact-specific. After a judicial pre-trial is completed and assuming Crown counsel wishes to continue the prosecution, an accused person will have to make the decision to go to trial or to resolve their matter by way of a guilty plea.

Guilty Plea

A guilty plea requires admitting the facts that form the basis of the charge or charges before the court. Once you have decided to plead guilty, a date is scheduled for the guilty plea to take place. In some cases, the plea may take place before the judge who participated in the judicial pre-trial (if one has occurred) but this is not always the case, nor is it necessary. One of the most important aspects of a guilty plea is the sentencing hearing that occurs after the plea. In some cases, the Crown and defence counsel may jointly ask for the same sentence. In other cases the Crown and defence counsel may disagree on the appropriate sentence resulting in both parties asking the judge for completely different sentences. Ultimately, it is up to the judge to impose the appropriate sentence based on the specific facts of each case and the details of the offender being sentenced. In the event that an accused person does not wish to plead guilty, a trial date is scheduled.

Trial Date

As you can see, there is quite a process before a criminal case ends up at trial. A trial usually occurs several months (sometimes even a year or longer) after the offence was alleged to have occurred. At trial, the Crown attorney will lead evidence from witnesses and other sources to demonstrate that you are guilty of the offences before the court. Your defence lawyer will have an opportunity to question any witness called by the Crown. Once the Crown believes they have established proof of your guilt beyond a reasonable doubt they will rest their case. At this point, you may chose to testify or call evidence on your own behalf to challenge the Crown's case.

Hiring a lawyer to work with you through the entire court process will ensure that you are properly represented at each and every stage of the proceeding. A lawyer is not just for someone who intends on having a trial. Your lawyer will also ensure that your rights are protected at each and every step of the proceeding. This is crucial to ensuring a winning strategy and a positive outcome in your case regardless of whether or not it your case goes to trial.

To discuss your case with a lawyer call 416.297.7200 or visit http://www.yourbestdefence.com/ for more information on criminal law related topics.

The Bail Hearing Process

2007-11-13T01:50:00.004-05:00

Does everyone charged with a criminal offence require a bail hearing? For most criminal offences, the police have the choice to release a person charged with a criminal offence without requiring a bail hearing. Police will generally not release a person without a bail hearing where they have concerns on one of the following grounds:

1) they need to establish the accused person’s identity
2) they fear the accused will destroy evidence relating to their investigation
3) they fear the accused will continue or repeat the offence or commit other criminal offences
4) they have reasonable grounds to believe the accused will not show up for court.

If the police hold any of these concerns, they will likely hold the accused person for a bail hearing.

What happens at a bail hearing? At a bail hearing, the court will decide whether or not the accused person should be released from jail while they await their trial.

How does the Court determine who can and cannot be released? In determining whether or not an individual facing criminal charges should be released from jail, the Court must be satisfied that the accused person will attend their court dates, that there is not a substantial likelihood that the accused would commit further criminal offences while released on bail and that the community would not be offended by the person's release given the serious nature of the offences alleged and the strength of the Crown’s case against the accused.

The onus is generally on the Crown to show why the accused should not be released on bail. In some situations, the onus is switched and it is the accused who must show why he should not be detained in jail while he awaits trial.

Most commonly, the reverse onus provisions are triggered when an accused person is already released on bail for other charges or is charged with a specific offence that imposes the reverse onus procedure, such as drug trafficking. A reverse onus situation may also be triggered when the person charged does not ordinarily reside in Canada.

For a person in custody, a bail hearing is often a critical juncture that will affect their decision on how to proceed with their case. This is a very important part of the criminal process and cannot be underestimated.

What does an accused person need to do to in order to get bail? At the bail hearing stage, the person charged will likely need the assistance of his or her friends or family members to come to court and act as sureties.

A surety is somebody willing to supervise the accused person while released on bail and is responsible for ensuring that all of the conditions of the bail are being followed. In some instances, the accused person may be required to live with the surety and the surety will likely be required to pledge a monetary amount towards the bail. This monetary pledge ensures that the surety will properly supervise the accused person - or risk losing their money should they fail to do so. In most instances, the surety need only establish that they have access to the amount of money being pledged and need not deposit the money with the courts. Bankbook statements or property deeds are examples of ways the surety can prove their assets to the Court.

How many sureties does somebody need to get bail? How much money will the sureties need to pledge? The amount of sureties and money to be pledged can vary depending on a number of factors such as the number of criminal charges the accused is facing, the type of charges, the financial situation of the surety, the surety’s ability to supervise the accused, whether the accused has a prior criminal record and the extent of the record among other considerations. Every case is fact specific and the decision of how many sureties are required and how much money they must pledge is ultimately a decision for Judge or Justice presiding over the bail hearing.

A surety may be asked to testify in Court about their plan to supervise the accused and perhaps give some background information about the accused person as well as their personal relationship with the accused in order to determine their suitability as a candidate to supervise the accused while on bail.

One of the most important roles a defence lawyer has at the bail hearing stage is to ensure that potential sureties at the bail hearing are adequately prepared for the process of testifying in court. The sureties should know ahead of time what questions will be asked of them by the defence lawyer and even what questions they may be asked by the Crown Attorney. One wrong answer to any of the questions asked in Court could result in the denial of bail for the accused.

Experienced criminal lawyers know what questions will likely be asked at a bail hearing and can prepare sureties ahead of time for the “tough” questions. A well prepared surety is often the difference between securing a release on bail and a detention order.

What if the surety can’t attend court for the bail hearing? If sureties are absent, one option may be to postpone the bail hearing to a later date when the sureties can be in attendance. There is no limit to the number of times a bail hearing can be postponed; however, a lawyer is usually only retained to appear for one bail hearing appearance. Postponing the hearing may result in additional costs incurred with the lawyer to have them appear on another date.

What happens if the accused is not granted bail? In the event of a detention order (denial of bail), the accused will have to bring a special application to the Superior Court of Justice to have his detention order reviewed by a higher Judge. For more information on the detention review process, please read "Changing My Bail Conditions"

Additional information can also be found on my website at http://www.yourbestdefence.com/. Alternatively, I can be reached at 416.297.7200 for a free consulation.

Shoplifitng (Theft Under $5,000) Charges

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What is theft? We all generally understand that theft is taking something that doesn't belong to you without the permission of the owner of the property.

Is it theft if I steal from someone who doesn't legally own the property I took? A theft can occur even when the property you took legally belonged to someone else. Any person having a property interest in an item taken can make a theft allegation.

There are many different types of theft. The most common type is shoplifting- or theft from a retail store. Shoplifting is a special kind of theft - often impulsive, sometimes compulsive. You don’t need to be embarrassed. It happens to all kinds of people.

The Crown Attorney in Ontario generally treat this type of theft less seriously than other types of criminal charges. Generally a shoplifting allegation is considered to be on the lowest end of the criminal law spectrum- with murder at the opposite end of the spectrum. If you have been caught shoplifting, you may be able to avoid a criminal conviction without even going to trial if you are a first time offender. In many Ontario cities including Toronto, people charged for the first time may be eligible to have the charge "diverted" from the court system resulting in a withdrawal of their criminal charges.

How can I get my theft charge diverted? Each courthouse in Ontario has a different diversion program and eligibility requirements differ from region to region. Eligibility for the diversion program is always determined by the Crown Attorney's office. If they deem an theft offence to be of a minor nature (usually a small quantity of merchandise was taken and the property was recovered), the Crown may pre-approve eligibility into the diversion program. Once in the program, the eligible candidate may be asked to complete one of a number of different tasks. In some jurisdictions, a person charged with theft may be required to watch a video on shoplifting. In other jurisdictions they may be required to make a donation to charity or complete a minimum number of community service hours - or both. Regardless of the requirements, the end result is usually the same. Once the diversion program has been completed to the satisfaction of the Crown Attorney, the Crown will recommend to the court that the criminal charge of theft be withdrawn against the accused person. This will result in the accused person maintaining a "clean" record (assuming they didn't have a prior criminal record).

If a person is not pre-screened as eligible for the diversion program, a lawyer may be able to convince a Crown Attorney to reconsider their decision.

Other types of theft, such as a theft from an employer is considered far more serious than shoplifting. The reason the courts and Crown's office treat these cases differently is due to the "breach of trust" that is committed by the employee. It is unlikely that a person charged with a "breach of trust" theft will be eligible for the diversion program. In fact, this type of an offence may even carry a jail sentence for a first time offender depending on the nature and severity of the allegation.

If you or someone you know is charged with theft, speak with a lawyer immediately to determine if you are eligible for the diversion program in order to protect your criminal record. Theft is considered a "crime of dishonesty" by employers and may act as a barrier to future employment in the business, education or health sectors, among others. A theft conviction may also create difficulties for non-residents intending on becoming Canadian citizens.

For more information, visit my website at http://www.yourbestdefence.com/ or call me at 416.297.7200 for a free consultation to discuss your case.

Domestic Assault Charges

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A domestic assault can be defined as an assault (see “Criminal Assault In Canada") that takes place between two people who are either currently or formerly dating or in a common law or married relationship. Where an assault takes place between two people who share one of these relationships mentioned above, the mater is labeled “domestic” and prosecuted quite differently by Crown counsel.

According to the “Crown Policy Manual”, a document provided by the Attorney General detailing how Crown counsel are to perform their duties, “Crown Attorneys should prosecute domestic violence offences as vigorously as other serious criminal matters”.

Although not classified differently in the Criminal Code, in many jurisdictions, domestic assaults are separately identified and prosecuted by a special team of Crowns who almost exclusively deal with these types of allegations.

Internal police policies dictate that in almost all situations, the police shall charge a person alleged to have assaulted another in a domestic context, regardless of whether or not independent proof exists such as visible injuries or independent witnesses to the offence. A person’s word is enough to drag another through the criminal justice system.

At the court stage, the Crown will usually carry on with a prosecution in cases where there is a reasonable prospect of conviction. It is of little importance to the Crown Attorney that the person making the complaint does not wish the matter to proceed to trial. In domestic situations, a complainant does not have the choice to “press charges” or not. If a complaint of domestic violence is made, the police will arrest and charge the person accused of the offence and the Crown will likely prosecute them regardless of the complainant’s wishes.

Typically, those charged with a domestic offence are held for a bail hearing, whether or not they are otherwise upstanding citizens without previous criminal involvement. They are also likely to be put on strict conditions of bail which restricts contact with the complainant even if the complainant wishes to have contact with the person charged. The accused person will also likely be required to remain away from their residence, regardless of legal ownership if the complainant continues to reside there. Conditions such as these remain for as long as the criminal charge are before the court.

While it is sometimes possible to change the conditions of bail, the process by which a bail is amended is often lengthy, complex and costly. For details on how to amend a bail condition see “How Can I Change My Bail Conditions”.

There are many ways to defend against an allegation of domestic assault without pleading guilty. Every allegation is different and it is important to discuss with a lawyer what options are available to you before you walk into a courtroom for the first time.

For more information on this, or any other tpe of criminal charge, visit my website at http://www.yourbestdefence.com/ or call me at 416.297.7200 to arrange a free consultation to discuss your specific situation so that I can provide sound legal advice that suits your needs and objectives.