Communicating For the Purpose of Prostitution

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.

Report laments legal aid snag

Report laments legal aid snag

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

Nov 29, 2008 04:30 AM

Tracey Tyler
Betsy Powell
Toronto Star

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Inmates win court food fight

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

Nov 18, 2008 04:30 AM

Betsy Powell Courts Bureau

"I'll have the Chicken Neptune."

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

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

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

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

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

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

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

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

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

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

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

Durham judge reconsiders prisoners' lunch menu

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

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

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

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

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

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

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

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

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

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

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

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

With a report from CTV Toronto's Austin Delaney

Defending Drug Possession Charges in Toronto, Ontario, Canada

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is justice system blind to colour?

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

July 21, 2008 Jim RankinBetsy Powell Staff Reporters

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How to Appeal a Criminal Conviction or Sentence

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

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

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

There are two types of appeals for criminal matters:

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

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

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

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

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

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

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

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

What are some of the results from a successful appeal?

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

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

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

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

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

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

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

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

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

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Defending Criminal Mischief Charges in Toronto, Ontario

Criminal Mischief Charges

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

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

(a) destroys or alters property;

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

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

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

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

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

What if the damage was caused accidentally?

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

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

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

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

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

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

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

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

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Uttering Death Threats or Threatening Bodily Harm

Uttering Death Threats or Threatening Bodily Harm

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

What is the definition of a threat?

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

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

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

What is required to establish a threat in law?

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

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

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

What if it was threat was impossible to carry out?

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

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

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Sexual Assault Charges - Toronto, Ontario

Criminal Sexual Assault

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

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

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

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

A person commits an "assault" when:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Impaired Driving Charges in Toronto

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

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

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:

1. Convicted of a summary offence;
2. On evidence the person is no longer of good character; or
3. 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

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

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

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.