This article is a brief and general overview reviewing legal information about failure to appear charges in Toronto, Ontario (aka. What happens when I miss my court date?). Those looking for advice on this or any criminal charge should consult a criminal lawyer.
Generally, it is a criminal offence to fail to appear in court as directed by a judge or to fail to appear for fingerprints and photographs as directed by a police officer pursuant to a valid court order.
What if I forgot my court date? Am I still guilty of failing to appear?
No. The act of failing to appear for court or at the police station for prints and photographs must be intentional. Therefore the crown must prove that you KNEW you had to attend and you chose not to. Forgetting your court date (even if you were negligent by not writing the date down etc.) will not meet the standard necessary for a conviction.
What If I intended to miss my court date but I had a really good reason for doing so?
In some circumstances, the court will accept a lawful (read: very good) excuse from an accused person as to why they missed their court date. Attending a job interview or being “hung over” are not likely considered lawful excuses. A lawful excuse usually requires that it would have been impossible for the accused person to attend the appearance. An example of a lawful excuse might be that the accused person was in the hospital with a significant medical condition that prevented them from being able to attend the court appearance. Another example of a lawful excuse may be that the accused person was in jail on another charge and couldn’t physically attend the appearance as required.
What happens if I just realized that I missed my court date? What do I do now?
What usually occurs when a person misses court is that the judge issues a warrant for their arrest. In the circumstance when the person misses their appearance for photographs and fingerprints, the police will issue the warrant.
Is it possible to have the warrant for my arrest for failing to appear cancelled?
It is possible (depending on when the warrant was issued) to have the warrant cancelled. Usually after two or three days, it will no longer be possible to have the warrant cancelled by the judge. In this instance, the defence lawyer will make arrangements to have the accused person surrender themselves to police to have the warrant processed.
If I surrender myself, will I still be charged with failing to appear in court?
Not necessarily- in some instances, a defence lawyer may be able to convince the police officer that the accused person simply forgot the date of their appearance and that the charge of failing to appear in court should not be laid.
What will happen to me after I surrender myself to the police for failing to appear?
In almost every instance, a person charged with failing to appear will be required to attend the police station for processing and will then be brought to the courthouse for a bail hearing. If a charge of fail to appear has not been added by the police officer, the accused person will likely be released back on the terms of their previous release associated to their underlying offence (for which they failed to appear). In other cases an accused person may have to go through the process of obtaining bail on the new charge and also risk the possibility of losing their bail on the underlying charge for which they failed to appear.
What are the penalties for failing to appear in court?
In some cases, it is possible to be found guilty of failing to appear and not receive a criminal conviction. However, many judges will impose jail sentences up to a maximum of six months for the offence. Regardless of what the penalty is, a finding of guilt for failing to appear in court will be a significant factor at any future bail hearing when deciding whether or not the accused person should be released on bail.
If you or someone you know has been charged with failing to appear for court, you should immediately contact a criminal lawyer to determine your best defence to this type of criminal charge. I can be reached for a free consultation at 416.297.7200.
Monday, March 2, 2009
Fail to Appear for Court
Fail to Comply with Bail
Generally, it is a criminal offence to violate any valid condition on a recognizance of bail, undertaking to a police officer, probation order, or peace bond.
What does the crown need to prove in order to establish the offence of failing to comply?
To establish guilt, the crown must prove that the accused was bound by the order setting out the condition (meaning that the court order hadn’t yet expired), the accused breached the condition set out in the order, and that the accused person intended to violate the condition in the order. Therefore, if the accused accidentally violated a condition of his bail he would not be guilty of the offence.
For example, if the accused was required to remain 500 metres from a specific address and was found 480 metres from the address, it may be open to him to argue that he wasn’t aware he had breached the distance condition of his bail. If believed, the accused would be found not guilty of the offence.
What if I had a good reason for violating my bail condition?
In some circumstances, it may be impossible for an accused person to comply with a condition of his/her bail. For example what if the accused was not permitted to leave their residence after 11:00pm and at 12:00am, the accused got very ill and had to go to the hospital? In this instance, the court may accept that notwithstanding the fact that the accused was in violation of their bail condition to remain inside, they had a reasonable excuse for leaving and would therefore be found not guilty. In such circumstances, it is for the accused to convince the judge on a balance of probabilities of the validity of the excuse in order to be found not guilty.
What if I was violating my bail condition and I don’t have a good reason for doing so? Should I just plead guilty?
Quite often, the Crown Attorney is unable to prove that an accused person was actually violating their bail condition as alleged by the police. Sometimes the Crown is missing the proper witnesses to prove the case while there are other times where the Crown does not have the required documents necessary to establish that the accused person was on a bail in the first place. Pleading guilty to this type of offence can not only lead to a jail sentence (even for a first time offender) but it can also be a significant factor in denying bail for a future offence (since it will be proven that on a prior occasion, the accused person did not comply with a condition of their bail and are therefore likely to disregard future court orders in the same manner). A decision to plead guilty should not be made until the accused person has reviewed all of the evidence in the case with his defence lawyer to determine what, if any defences to the charge, are available to him.
What if my constitutional rights were violated? Will I still be found guilty of the offence?
In some circumstances, the fact that the accused person was illegally stopped and searched by police which lead to the discovery of the bail violation may in fact be a possible defence to the charge. I have represented a number of accused persons who have been found not guilty of violating their bail conditions, notwithstanding the fact that technically they were doing something their bail prohibited them from doing. Ultimately, if the police had no legal basis for detaining and questioning the accused, the Court will generally rule that the evidence derived from the illegal encounter should not be used as evidence in the trial. Quite often, without this evidence, the Crown Attorney is unable to prove the case.
If you or someone you know has been charged with failing to comply with bail or other court order, you should immediately contact a criminal lawyer to determine your best defence to this type of criminal charge. I can be reached for a free consultation at 416.297.7200.
Possession of a Weapon for a Dangerous Purpose
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.
Thursday, November 20, 2008
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.
Monday, November 17, 2008
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
Monday, July 28, 2008
Defending Drug Possession Charges in Toronto, Ontario, Canada
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.
Wednesday, July 23, 2008
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."
