Generally, it is a criminal offence to violate any valid condition on a recognizance of bail, undertaking to a police officer, probation order, or peace bond.
What does the crown need to prove in order to establish the offence of failing to comply?
To establish guilt, the crown must prove that the accused was bound by the order setting out the condition (meaning that the court order hadn’t yet expired), the accused breached the condition set out in the order, and that the accused person intended to violate the condition in the order. Therefore, if the accused accidentally violated a condition of his bail he would not be guilty of the offence.
For example, if the accused was required to remain 500 metres from a specific address and was found 480 metres from the address, it may be open to him to argue that he wasn’t aware he had breached the distance condition of his bail. If believed, the accused would be found not guilty of the offence.
What if I had a good reason for violating my bail condition?
In some circumstances, it may be impossible for an accused person to comply with a condition of his/her bail. For example what if the accused was not permitted to leave their residence after 11:00pm and at 12:00am, the accused got very ill and had to go to the hospital? In this instance, the court may accept that notwithstanding the fact that the accused was in violation of their bail condition to remain inside, they had a reasonable excuse for leaving and would therefore be found not guilty. In such circumstances, it is for the accused to convince the judge on a balance of probabilities of the validity of the excuse in order to be found not guilty.
What if I was violating my bail condition and I don’t have a good reason for doing so? Should I just plead guilty?
Quite often, the Crown Attorney is unable to prove that an accused person was actually violating their bail condition as alleged by the police. Sometimes the Crown is missing the proper witnesses to prove the case while there are other times where the Crown does not have the required documents necessary to establish that the accused person was on a bail in the first place. Pleading guilty to this type of offence can not only lead to a jail sentence (even for a first time offender) but it can also be a significant factor in denying bail for a future offence (since it will be proven that on a prior occasion, the accused person did not comply with a condition of their bail and are therefore likely to disregard future court orders in the same manner). A decision to plead guilty should not be made until the accused person has reviewed all of the evidence in the case with his defence lawyer to determine what, if any defences to the charge, are available to him.
What if my constitutional rights were violated? Will I still be found guilty of the offence?
In some circumstances, the fact that the accused person was illegally stopped and searched by police which lead to the discovery of the bail violation may in fact be a possible defence to the charge. I have represented a number of accused persons who have been found not guilty of violating their bail conditions, notwithstanding the fact that technically they were doing something their bail prohibited them from doing. Ultimately, if the police had no legal basis for detaining and questioning the accused, the Court will generally rule that the evidence derived from the illegal encounter should not be used as evidence in the trial. Quite often, without this evidence, the Crown Attorney is unable to prove the case.
If you or someone you know has been charged with failing to comply with bail or other court order, you should immediately contact a criminal lawyer to determine your best defence to this type of criminal charge. I can be reached for a free consultation at 416.297.7200.
Monday, March 2, 2009
Fail to Comply with Bail
Possession of a Weapon for a Dangerous Purpose
It is an offence in Canada to possess a weapon for a purpose dangerous to the public’s peace or for the purpose of committing a criminal offence.
What is a weapon?
There are some items such as “firearms” and a list of other illegal objects including brass knuckles or cross bows that will always meet the definition of a weapon in law. Other items, such as a pocket knife or hunting knife require that the item be, “used, designed to be used or intended for use in causing death or injury to any person or for the purpose of threatening or intimidating any person” to meet the definition of a weapon. The Crown Attorney must prove that the item meets this definition or fall within a list of prohibited weapons in order to establish that the item is a weapon.
What is considered a purpose dangerous to the public’s peace?
A purpose dangerous to the public’s peace includes a disruption of the “normal state of society” and a disturbance of “the general peace and order of the realm as provided for by law”. It is an, "unquiet and harmful behaviour towards the Queen and her people" according to various legal definitions.
What if I am not found with the weapon in a public place?
The possession by the accused of weapons in their own home or a private place does not preclude a finding of a purpose dangerous to the public peace. This is so even if there is a use of the weapon giving rise to the charge, which use takes place entirely in private.
What if I was extremely intoxicated at the time I possessed the weapon? Is intoxication a defence to this offence?
The Crown must show that the accused person not only possessed the weapon, but also possessed it with the added purpose of disturbing the peace or committing a crime. If the accused was too intoxicated to form the specific intent required to commit the full offence, he will be found not guilty.
What if I originally possessed the weapon for a lawful purpose but later used it as a weapon? Will I be found guilty of the offence?
A person who uses an item they otherwise lawfully possessed as a weapon may not be found guilty of possession for a dangerous purpose (however they may be found guilty of another offence such as assault with a weapon). Unpremeditated use of a weapon otherwise possessed for a lawful purpose does not necessarily reflect possession for a purpose dangerous to the public peace.
Is it okay for me to possess a weapon for self-defence?
There is no clear answer to this question. Some courts have held that the possession of a weapon solely for self-defence reasons does not trigger the offence of possession for a purpose dangerous to the public. However, this view is not unanimous and many trial judges have come to the exact opposite conclusion. Ultimately, this becomes a very fact specific analysis.
Can I argue that I was illegally searched by the police?
Many cases of possession of weapons are won on the basis that the evidence obtained by the police are excluded from evidence at trial as a result of an illegal search, stop or interrogation by police officers which lead to the discovery of the weapon. I have won a number of cases for clients using this type of argument.
What are the types of punishments I can face for this type of offence?
The sentences for possession of a weapon dangerous to the public can range to a maximum 10 years in prison if the Crown proceeds by indictment or a maximum six months in jail if the crown proceeds by summary conviction. Notwithstanding these penalties, the reality is that a first time offender or someone with a minor record may be able to avoid jail or a criminal record altogether with the right representation.
If you or someone you know is charged with possession of a weapon for a dangerous purpose, you should immediately contact a criminal lawyer to determine your best defence for this type of criminal charge. I can be reached for a free consultation at 416.297.7200.
Communicating For the Purpose of Prostitution
Is it a crime in Canada to engage in prostitution or to obtain the sexual services of a prostitute?
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?
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.
Thursday, January 29, 2009
Mother cleared in gang probe
Crown withdraws more accusations against those arrested in raid on alleged MS-13 members
Jan 27, 2009 04:30 AM
BETSY POWELL
COURTS BUREAU
The Crown has withdrawn more than 30 drug-related charges against a young mother arrested as part of last year's high-profile takedown of suspected MS-13 gang members.
Rosa Martinez-Cabrera, 24, spent more than five months in pre-trial custody, leaving her baby in the care of her in-laws, before she was released last fall.
Yesterday, the woman shook her head and declined to comment as she pushed a baby stroller outside the Old City Hall courtroom.
"I should sue," she said to her lawyer, Daniel Brown.
Brown said the circumstances are unfortunate, since Martinez-Cabrera spent "close to six months in pre-trial custody, a young child was taken out of her arms, and they fought her at all stages for her release."
Then, in the end, the Crown "realized they didn't have a case."
Her boyfriend, Douglas Moreira, 28, yesterday pleaded guilty to one count of possession of cocaine for the purpose of trafficking.
Judge Robert Bigelow sentenced Moreira to 24 months in prison, but gave him two-for-one credit for the eight months he had spent in custody, so Moreira must serve an additional eight months.
Both Martinez-Cabrera and Moreira forfeited claim to $30,000 seized during the raids; Brown told court there is no admission the money belonged to either of them.
Federal prosecutor Antoinette Issa also withdrew charges against another co-accused yesterday.
Now only one accused remains in what defence lawyers say is the embarrassing collapse of the case that made headlines in 2008, when Toronto police said they had taken steps to dismantle a local faction of the MS-13, one of the world's most vicious gangs.
"Gang investigators have stamped out the first wisps of smoke signalling the arrival of a notoriously violent street gang with U.S. and Central American roots," said a Toronto police news release.
"It was a lot more talk than actual show on the part of the police," said Brown.
"Where is it? Where is the gang they brought down? ... This was police officers rushing an investigation here, far below the standards that could possibly meet a conviction for participating in a criminal organization."
In a series of pre-dawn raids last June, Toronto police arrested 17 people they suspected of belonging to the Central American criminal organization.
Five were charged with plotting to kill a jail guard at Toronto West Detention Centre, but last fall the Crown stayed the murder conspiracy charges against four of the accused.
The Crown has also stayed the charges against the four of uttering death threats and belonging to a criminal organization.
Saturday, November 29, 2008
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.
