LawyerSelect.ca - Criminal Law Blog

Impaired Driving in Canada: An Introduction

noreply@blogger.com (iobject25) — Sat, 17 Feb 2018 02:18:00 +0000

IMPAIRED DRIVING IN CANADA - AN INTRODUCTION

This blog is brought to you courtesy of LawyerSelect.ca

What's the difference between "Over 80" and "Impaired Driving"?

Both Impaired Driving and Over 80 are criminal offences that carry the exact same punishment. Additionally, both the offences arise when an individual allegedly operates a motor vehicle while their ability to do so is impaired by alcohol or a drug. That's not to say, however, that they're the same crime.

To charge someone with Impaired Driving, police need to have reasonable grounds to believe that the individual in question is operating a motor vehicle while their ability to do so is impaired by alcohol or a drug. Unlike the offence of Over 80, there is no minimum blood-alcohol concentration required to charge someone with Impaired Driving. Therefore, the offence is dependent upon evidence of impairment, rather than a specific blood-alcohol concentration. Police typically gather evidence of impairment by observing the individual's manner of driving, their fluidity of speech, and the soundness of their motor skills. Persons who don't drink often, or who have a low tolerance to drugs or alcohol may be more susceptible to a charge of impaired driving because of the greater-than-normal effects that the alcohol or drug has on their body. Even the consumption of only a few drinks over an extended period of time can cause a person of this sort to suffer from impairment.

The offence of Over 80, on the other hand, requires that an individual have a specific amount of alcohol in their bloodstream. The criminal limit for a driver's blood-alcohol concentration is 80 milligrams of alcohol in 100 milliliters of blood. In order to arrest an individual suspected of driving with a blood-alcohol concentration of over 80, police must conduct an approved field sobriety test, which can either be by way of an Approved Screening Device (ASD), or a physical field sobriety test. In the modern world, the test is almost always conducted by using an ASD. Let LawyerSelect.ca connect you with a top Toronto Impaired Driving Lawyer who stays on top of the most current legal issues.

What does the Crown Attorney need to prove in order to convict me for Impaired Driving?

In order for the Crown Attorney to secure a conviction for impaired driving, they'll need to prove to the court beyond a reasonable doubt all of the following:

The individual in question was, in fact, operating a motor vehicle at the time and place in question.
That there is evidence of any degree of impairment of the individual's ability to operate a motor vehicle at the time and place in question. It's very important to note here that ANY degree of impairment will suffice, even if very minute.
The individual in question was impaired by an alcohol or drug at the time and place in question.

It should be noted that the Crown Attorney doesn't have to prove that the individual was driving at the time and place in question. Rather, all they're required to prove is that the individual was in Care and Control of the motor vehicle at the time an place in question. Contact us at LawyerSelect.ca, and we'll connect you with a top Toronto Impaired Driving Lawyer.

What's a roadside screening device (ASD), and how does it work?

An approved screening device (ASD) is a tool of measurement designed to quantify the concentration of alcohol in an individual's bloodstream. This is the instrument that is used by law enforcement to check drivers for roadside sobriety. Police are authorized to demand that a driver submit to the screening test if they have reasonable grounds to suspect that the individual has alcohol in their blood. Again, you'll notice here that evidence of ANY presence of alcohol in the bloodstream will suffice and enable the officer to make a roadside screening demand.

It's important to make a crucial distinction here between the ASD and another measurement device known as the Approved Instrument. The purpose of the ASD is to act as an investigatory tool for police to detect the approximate concentration of alcohol in the driver's bloodstream. The readings provided by the ASD are not conclusive of the driver's blood-alcohol concentration, but serve only as an investigatory tool to aide police in their investigation. If, after providing a sample of their breath into the ASD, the driver registers a fail result, then this has the effect of elevating the police's evidentiary foundation from suspicion of the presence of alcohol in the bloodstream, to belief that the individual does have alcohol in their bloodstream. This is the point at which the individual is arrested and taken to the police station where they're required to provide an additional two samples of their breath into the Approved Instrument (AI), which is sometimes referred to as the Intoxilyzer. The AI is a much more finely tuned measuring device than is the ASD. The AI will take two samples of the individual's breath spaced at minimum 15 minutes apart. Upon the completion of the second sample, the machine will calibrate the results and provide a blood-alcohol concentration for the individual to the nearest 3rd decimal point.

It should be noted that individuals arrested for over 80 will necessarily have to provide the two samples of their breath into the AI, whereas an individual arrested for impaired driving isn't required to. This is because the evidentiary foundation for an arrest for over 80 is based on the result of the ASD, whereas the evidentiary foundation for an arrest for impaired driving is based on the manifestations of impairment coming from the driver. At LawyerSelect.ca, we make it our business to know the best Toronto Impaired Driving Lawyers and connect you with them. Contact a client service specialist now to take advantage of our free lawyer referral service, and get in contact with a top Toronto Impaired Driving Lawyer.

What happens if I blow a fail into the ASD by the roadside?

As we explained above, if an individual registers a fail result into the ASD, then this has the effect of elevating the police’s evidentiary foundation from suspicion to belief that the individual has alcohol in their blood-stream while operating a motor vehicle. What typically happens next is the individual is arrested for over 80 and taken back to the police station where police will demand that they give a further two samples of their breath into the AI. Once back at the station, the readings provided into the AI will form the majority of the case against the individual suspected of over 80. However, sometimes their blood-alcohol concentration doesn’t reach the criminal level of 80 milligrams of alcohol in 100 millilitres of blood. If that’s the case, no charges will be laid, and the individual will typically be released.

In Ontario, however, a failed result on an ASD may lead to a driver’s licence suspension even if no criminal charges are laid. This is because Ontario has legislated for a lower blood-alcohol concentration for drivers using their power to regulate traffic. In Canada, the power to create criminal laws is reserved exclusively for the federal government. However, the provinces still retain the power to create laws that regulate drivers, traffic and highways (which include roads) within their territory. As such, drivers should be cognizant of that fact, and plan accordingly. Contact us at LawyerSelect.ca, and we’ll put you in touch with the best Toronto Impaired Driving Lawyer for your case, which is one that you can afford and works well with you.

What happens if I only blow a “warn” on the ASD?

Building on what we explained above, in Ontario, if you provide a sample of your breath into an ASD which results in a “warn” reading, then you’ll lose your driver’s licence on the spot for a period of between 3 to 30 days, depending on whether you’ve done this before. For first time offenders, the licence suspension is only 3 days, with second time offenders losing it for 7 days, and third time offenders for 30 days. For the increased penalties to apply to second and third time offenders, the previous incident must have occurred within 5 years of the current incident.

An ASD will register a “warn” reading if the individual’s blood-alcohol concentration is between 50 milligrams of alcohol in 100 millilitres of blood to 80 milligrams of alcohol in 100 millilitres of blood. We typically call these readings 0.05 and 0.08.

The exact penalties levied on drivers who register a “warn” reading in Ontario are:

First time: 3 day licence suspension and $150 fine.
Second time: 7 day licence suspension, $150 fine, and mandatory alcohol education program
Third time: 30 day licence suspension, $150 fine, mandatory alcohol education program, and 6 month ignition interlock licence condition.
Subsequent infractions: 30 day licence suspension, $150 fine, mandatory alcohol education program, 6 month ignition interlock licence condition, and mandatory medical evaluation.

One of the most controversial issues surrounding the provincial drinking and driving laws is that the penalties can’t be appealed. They’re typically issued by law enforcement on the roadside, and drivers have no recourse to appeal either the finding or the penalty in the courts, or elsewhere. The incidents will also be recorded on the driving record of the individual, which will almost certainly affect their insurance premiums. At LawyerSelect.ca, we'll ensure that you hire the right Toronto Impaired Driving Lawyer for your case.

Will I still get charged with Impaired Driving if I'm operating machinery, rather than driving?

Most people are surprised to find out the answer to this question is a resounding, YES! The law states that you can be charged with impaired driving if the machine that you’re operating fits within the description of a motor vehicle, as defined in section 2 of the Criminal Code of Canada. Section 2’s definition of motor vehicle includes any vehicle that can be drawn, propelled, or driven by any means, except muscular power, but does not include a train or any railway equipment (which has its down definition). Contact us at LawyerSelect.ca, and we'll connect you with a top Toronto Impaired Driving Lawyer.

Will I still get charged with Impaired Driving if I'm pulled over on an e-bike?

Again, many people are astounded to discover that they can be charged with impaired driving even when operating an e-bike. The reason for this is that the physical description of the e-bike fits the definition contained in section 2 of the Criminal Code, and as such, is considered a motor vehicle within the law. Contact us at LawyerSelect.ca, and we'll connect you with a top Toronto Impaired Driving Lawyer.

What if the vehicle wasn't in motion - can I still be charged with Impaired Driving?

The situation where this scenario most often arises is where individuals consume alcohol inside their motor vehicle. Under Canadian law, an individual who is found consuming alcohol inside their motor vehicle, whether or not the car was parked or in motion, can be charged with a DUI offence.

Under section 253 of the Criminal Code, an individual can be charged with impaired driving in one of two ways: first, by operating the motor vehicle while their ability to do so is impaired by alcohol or drugs, and second, by having care and control of the motor vehicle while they’re impaired by alcohol or drugs. So, the simple answer to this question is, yes, but please visit the section on Care and Control to learn more about this offence. Contact us at LawyerSelect.ca, and we'll connect you with a top Toronto Impaired Driving Lawyer.

Can the police charge me with both Impaired Driving and Refusing to Provide a Breath Sample?

The simple answer here is, yes, an individual can be charged with both refusing to provide a breath sample and impaired operation if the evidence discloses the presence of both offences. Here’s how it can happen: you’ll recall that proof of impaired driving doesn’t require the use of an ASD, but rather, the evidentiary support is found in proof of impairment while operating a motor vehicle. Proof of impairment can be based on erratic driving, slurred speech, fumbling of documents, and other indicia of impairment. As such, a charge of impaired operation can be laid without the use of an ASD. However, in order to strengthen their case, police officers often demand that the individual suspected of impaired driving provide them with a breath sample into the ASD. If the individual refuses, then he or she can be charged with refusing to provide a breath sample, which is in addition to the charge of impaired operation. Contact us at LawyerSelect.ca, and we'll connect you with a top Toronto Impaired Driving Lawyer.

Are there minimum sentences if I'm convicted of Impaired Driving?

The short answer to that is, yes, but only for subsequent offences. What that means is for a first offence, there are no minimum sentences that are prescribed by the Criminal Code. However, if an individual is tried and convicted for a second offence of impaired driving (or any other DUI-related offence for that matter), they’ll be subject to a minimum sentence of 30 days in jail. For a subsequent conviction (three or more), there’s a minimum sentence of 120 days in jail.

Now, if you or someone you know is facing a second or third conviction for impaired driving, don’t panic. There are things that can be done to lessen the blow. For example, a skilled Toronto DUI Lawyer may be able to secure weekend jail terms, whereby the individual can serve their sentence on weekends. This alleviates many of the issues facing individuals convicted of multiple DUI charges, who often times lose their employment because of the minimum jail sentences involved. A skilled Toronto DUI Lawyer will either negotiate with the Crown Attorney, or secure through a sentencing hearing, an arrangement whereby the jail term is served on weekends. There are several options for individuals who have secured weekend jail terms. Firstly, they can choose to begin serving the sentence on Friday nights, ending on Monday morning. This is the most expedient form of weekend jail sentences, as it counts as 4 days towards your jail term. This is the preferred scheduling arrangement over that of serving Saturday and Sunday and only receiving two days towards your jail term.

----------

With all that you have at stake, don't risk an Impaired Driving conviction just to save money on legal fees. You'll end up paying more in the end. At LawyerSelect.ca, we specialize in connecting you with the right lawyer for your matter. Whether you have a language barrier, financial constraints, or lack of transportation, we'll ensure you're connected with the right Toronto Impaired Driving Lawyer who speaks your language, is affordable, and lives in your area. We encourage you to call us anytime, 24/7, to get a Toronto Impaired Driving Lawyer Referral. We're available by phone at (416) 419-6959, or online at LawyerSelect.ca, or click the button below for our referral form.

Over 80: A Drinking a Driving Offence Explained

noreply@blogger.com (iobject25) — Sat, 17 Feb 2018 02:13:00 +0000

Over 80: A Drinking a Driving Offence Explained

This blog is brought to you courtesy of LawyerSelect.ca

What Does The Term “Over 80” Actually Mean?

As you probably already know, the Canadian criminal law contains several offences that loosely fall under the umbrella of a DUI (driving under the influence). One of those offences is known as Over 80; but what exactly does it mean, and what is it referring to? Simply put, the term Over 80 refers to the offence of operating a motor vehicle (or having care and control of a motor vehicle) while an individual’s blood alcohol concentration (BAC) is equal to, or more than, 80 milligrams of alcohol in 100 millilitres of blood. Therefore, 80 milligrams of alcohol in 100 millilitres of blood is the criminal limit, which we usually refer to as 0.08 (said: point zero eight).

It is important to note that your ability to operate a motor vehicle may not actually be impaired despite your blood-alcohol concentration being in excess of 0.08. However, this is not a relevant consideration for this offence. The offence is completed once an individual’s blood-alcohol concentration is equal to, or in excess of, 0.08 and they operate a motor vehicle (or have care and control of it). Let LawyerSelect.ca connect you with a top Toronto Over 80 Lawyer who stays on top of the most current legal issues.

What Does The Crown Attorney Need To Prove To Convict Me Of Over 80 Where Bodily Harm Or Death Has Resulted?

In situations where an individual whose blood-alcohol concentration is over 80 causes injury or death to a motorist or bystander, then they’re likely to be charged with the more serious offence or Over 80 causing bodily harm, or Over 80 causing death. In either case, the Crown Attorney must prove to the court at trial that the accused individual’s operation of a motor vehicle was a substantial contributing factor to the accident, which resulted in the injury or death of the motorist or bystander. Contrary to popular belief, there is no onus upon the Crown to show evidence that the accused individual drove in a negligent or dangerous manner. The only additional evidentiary requirement imposed on the Crown is to show that the accused individual’s vehicle was a significant cause of the accident that resulted in injury or death. Contact us at LawyerSelect.ca, and we'll connect you with a top Toronto Over 80 Lawyer.

Is It Legal For The Crown To Use Evidence Collected By The Police During A Roadside Investigation Against Me In Court?

This is a bit of a tricky question, but the outright answer is no. Technically, any evidence obtained by police during a roadside investigation before the accused was given an opportunity to consult a lawyer cannot be used against them at trial. The law does this to protect Canadians from having conscripted statements used against them at a criminal trial. In this context, a conscripted statement refers to the questions that a motorist is required to answer by law if asked by police. For example, if you’re involved in a traffic accident, then the law requires you to provide police with a response to any questions related to the accident investigation. Even if you haven’t consulted a lawyer yet, you’re still legally obligated to answer their questions. As a result, the law states that your responses to those questions can’t be used at trial against you.

However, evidence obtained from a motorist before they’ve spoken to a lawyer can be used to form the basis for reasonable grounds, which permits the police to demand a breath sample from the suspect individual. In other words, the explanation that a driver provides police as to the reason for the accident can’t be used against them to prove impairment, but can be used to contextualize the officer’s reasonable belief that a crime did occur.

It is important to note that the rule excluding evidence gathered before an accused individual speaks with legal counsel does not apply to any visual observations made by law enforcement at the roadside. In fact, most observations regarding the physical state of the accused (like red eyes, slurred speech, unsteadiness on one’s feet, and an odour of alcohol) made by a police officer can be used against the accused individual at their trial. At LawyerSelect.ca, we make it our business to know the best Toronto Over 80 Lawyers and connect you with them. Contact a client service specialist now to take advantage of our free lawyer referral service, and get in contact with a top Toronto Over 80 Lawyer.

The Cops Showed Up At My House! Are They Allowed To Investigate Me For A DUI Offence If I’m At Home?

In situations where the accused motorist has left the scene and returned home, police are legally entitled to show up at their home and investigate further if they have reasonable grounds to suspect that the accused motorist was operating a motor vehicle while impaired, or while their blood-alcohol concentration was over 80. The extent to which the investigation can continue at the home of the accused motorist will depend upon their willingness to cooperate with the police’s investigation. The police are legally entitled to walk up the driveway and ring the doorbell. However, if the residents of the home ask police to leave, then they must comply, unless they acquired sufficient evidence through other sources to make an arrest for impaired driving or over 80. If, however, police are not asked to leave the property before they’re able to gather the necessary evidence to make an arrest for impaired driving or over 80, then any further evidence that they gather will likely be found to have been obtained legally, or constitutionally. Contact us at LawyerSelect.ca, and we’ll put you in touch with the best Toronto Over 80 Lawyer for your case, which is one that you can afford and works well with you.

What’s The Difference Between “Reasonable Grounds To Believe” And “Reasonable Grounds To Suspect”?

In the context of a DUI offence, an officer is required to have reasonable grounds to suspect that the accused individual had alcohol in their body and had been operating (or having care and control) of a motor vehicle within the three preceding hours in order to make a breath sample demand. The law requires police to have objectively discernable facts to support their suspicion or belief, and only after they’ve acquired said facts can their suspicion or belief be considered reasonable in law.

It is important to note that what is meant by reasonable suspicion in this context is regards to the possibility, and not probability, of the event(s) in question occurring. The officer making this assessment must look at the totality of all the circumstances before drawing any conclusions. There are a plethora of observations that a police officer can make that alone, or combined with other observations, are sufficient to support reasonable suspicion on their part.

Odour of Alcohol

There is case law to support that an odour of alcohol emanating from the vehicle being investigated can be sufficient to furnish the officer with reasonable suspicion of impairment, and therefore, the right to demand further sobriety testing from the accused motorist. Some of the case law suggests that the odour need not be strong, nor need it come from the mouth of the driver. Additionally, some case law suggests that even when the driver has denied consuming alcohol, if the odour of an alcoholic beverage is detected by the investigating officer emanating from the vehicle, then this gives them legal grounds upon which to make a roadside screening demand using an ASD. Lastly, in situations where there is no odour of alcohol but where the driver has admitted to consumption, then the grounds exist upon which a roadside screening demand can be made.

Statements made by the accused motorist

When a motorist is pulled over by police, a short conversation between the two usually takes place at the driver’s window. Officers will typically ask motorists short, pointed questions designed to assess whether they’ve consumed any alcohol. The statements made by the motorist in response to the officer’s questions are admissible as evidence only to support the officer’s suspicion of impairment. The statements are not admissible as evidence to be used directly against the accused at their trial.

It is important to note here that if a motorist is questioned by police during a roadside stop regarding their alcohol consumption, they are under NO legal obligation to answer. That being said, if the motorist admits to consuming alcohol, that will be enough to give the officer reasonable suspicion of impairment. Once the officer has reasonable suspicion, they are empowered by law to make a roadside screening demand to have the motorist provide a sample of their breath into an ASD.

Requesting that the driver blow air at the officer

One of the more common investigative tools used by police in DUI investigations is to request the driver of the vehicle to blow air in the face of the officer so as to detect the odour of alcohol. A number of issues arise in this situation: firstly, the driver is not required by the law to comply with the “blow in face” demand made by the officer, and secondly, if the driver complies and the officer detects the odour of alcohol, then that will be sufficient to trigger reasonable suspicion of impairment on the part of the officer.

What if the officer sees an open liquor container in the car?

Simply observing an open liquor container in a motor vehicle is not sufficient evidence to trigger reasonable suspicion of impairment. However, if the officer also detects an odour of alcohol emanating from anywhere inside the vehicle, then that will raise the evidentiary foundation of the officer thereby triggering reasonable suspicion of impairment.

Other indicia of alcohol consumption/impairment

Some additional indicators used by law enforcement to detect if the motorist has been drinking are:

· Erratic/poor driving – usually the motorist is followed by the officer for a period of time during which observations are made regarding their driving.

· Admission of consumption by the motorist – if the driver admits to drinking ANY alcohol prior to driving, then that will be enough to trigger reasonable suspicion of impairment.

· Red/bloodshot/glossy eyes – this is one of the most often cited indicia by police.

· Confusion – if the driver seems confused or disoriented the officers will tend to suspect impairment.

· Slurred/incoherent speech – if a driver is slurring their words, or not making sense, then officers will typically suspect impairment.

It is important to note that the above indicators are not sufficient on their own to raise a reasonable suspicion of impairment. Rather, they usually need to be accompanied by a more determinative indicator, such as admission or odour. That is not a hard and fast rule, however, as the body of law in this area is somewhat conflicted. At LawyerSelect.ca, we'll ensure that you hire the right Toronto Over 80 Lawyer for your case.

How Does The Crown Attorney Prove The Existence Of Reasonable Suspicion At Trial?

The Canadian Charter of Rights and Freedoms requires that the evidence collected by the officer from the roadside stop be legally obtained. If it is not, then the evidence is inadmissible at trial. For the officer to legally obtain the evidence of impairment (breath sample into the ASD), he or she must have had a reasonable suspicion that the motorist was impaired, or had consumed alcohol before driving. Without reasonable suspicion, the officer is not legally empowered to make a roadside breath demand.

This means that at the trial of the accused individual, the Crown Attorney must have the officer articulate the foundation for their reasonable suspicion of impairment. This is done through direct-examination, as the officer is typically a Crown witness. In forming reasonable suspicion, the officer is entitled to rely on their personal observations of the motorist, as well as the observations of witnesses that may have been communicated to them. The court will then determine whether the grounds upon which the officer relied to make the roadside breath demand were objectively reasonable, and sufficient in law. If they are, then the roadside breath demand is valid, and the trial continues. If not, then the Crown’s case may be unwinnable. Contact us at LawyerSelect.ca, and we'll connect you with a top Toronto Over 80 Lawyer.

Under What Circumstances Can Police Demand That I Participate In Additional Roadside Sobriety Testing?

The Criminal Code clearly articulates the grounds upon which an officer can demand that a motorist submit to roadside sobriety testing. That is, once police have reasonable grounds to suspect (aka reasonable suspicion) that a motorist has been operating a motor vehicle (or having had care and control of that motor vehicle) within three hours of the consumption of alcohol, then they’re empowered to demand that the motorist submit to roadside sobriety testing.

In addition to the evidentiary standard required of officers, the issue of timing is also heavily regulated. Timing in this context refers to the exact moment that the officer makes the roadside sobriety demand of the motorist. The Criminal Code requires officers to issue the roadside breath demand as soon as that officer forms a reasonable suspicion that the motorist is impaired, or has consumed alcohol within the three preceding hours. That said, the exact circumstances of each case will be assessed by the court to determine if any delays in making the roadside breath demand were reasonable. For example, delays that result from securing the safety of law enforcement officers at the scene, or the readying of the ASD will be considered reasonable in the circumstances.

Once the police officer at the scene issues the breath demand to the motorist, then the motorist is obliged by law to respond (yes or no) forthwith to the demand, and if they agree, the test must be administered immediately thereafter. As a general rule, there shouldn’t be a delay in administering the breath test once the motorist has agreed, however, there are certain exceptions to this rule. For example, short delays that are used by officers to further investigate the scene, or to attend to other accident victims, are not considered unreasonable delays in law. Another common exception to the delay rule is where the officer at the scene has reason to believe that the motorist has consumed alcohol within 15 minutes prior to the officer making the demand, or where there’s reason to believe that the motorist has vomited in the past 15 minutes. In these scenarios, the delay is justified because of the possible presence of mouth alcohol, which is well-known to cause higher readings for those not actually over 80.

In addition to how and when a roadside breath demand is made, the identity of the officer making the demand is of great importance. The Criminal Code stipulates that only the officer who formed the grounds to issue the demand is legally entitled to make the demand. The exception to that rule is, however, that if the officer who originally formed the grounds for the demand communicated those exact grounds to another officer, who then made the breath demand on that basis.

With all that you have at stake, don't risk an Over 80 conviction just to save money on legal fees. You'll end up paying more in the end. At LawyerSelect.ca, we specialize in connecting you with the right lawyer for your matter. Whether you have a language barrier, financial constraints, or lack of transportation, we'll ensure you're connected with the right Toronto Over 80 Lawyer who speaks your language, is affordable, and lives in your area. We encourage you to call us anytime, 24/7, to get a Toronto Over 80 Lawyer Referral. We're available by phone at (416) 419-6959, or online at LawyerSelect.ca, or click the button below for our referral form.

Is There A Statute Of Limitations On Crimes In Canada?

noreply@blogger.com (iobject25) — Mon, 15 Jan 2018 07:25:00 +0000

Is There A Statute Of Limitations On Crimes In Canada?

This blog is brought to you courtesy of LawyerSelect.ca - Toronto's Premier Lawyer Referral Service

You may have recently read in the newspaper of a man by the name of Ronald Stan who, back in the mid-1970s, burned down a farmer’s barn in the Ontario county of Middlesex. After committing the crime, he travelled south to a small town in Oklahoma, where he resided for the next 37 years under an assumed identity. Despite being presumed dead by Canadian law enforcement, he was apprehended back where the crime was committed, 37 years later, in Middlesex County.

His arrest raised an interesting question: had the limitation period for charging him with arson lapsed? Before we answer that, it’s helpful to first understand what a limitation period is. Put simply, a limitation period is a law that defines a specific window of time during which a person who’s committed a criminal offence in Canada can be charged with that offence by law enforcement. Once that time has lapsed, law enforcement is statutorily barred from charging the accused individual with the offence in question, despite the existence of evidence tending to prove his/her guilt.

Under the Canadian criminal law, a limitation period only exists for summary conviction offences – which begins running on the date the offence was committed. You’re probably wondering what a summary conviction offence is. Put simply, there are three types of offences in Canada: summary conviction offences, indictable offences, and hybrid offences. Summary conviction offences tend to be less serious crimes, like theft under $5000, while indictable offences tend to be the more serious kind, like arson and murder. A hybrid offence is a middle ground: it’s an offence that can be categorized either as summary or indictable. The majority of offences enumerated in the Criminal Code of Canada are hybrid offences. The purpose behind hybrid offences is to provide the Crown Attorney with some flexibility in how they pursue a certain matter. For example, if the accused has no prior criminal record, then the Crown is likely to pursue the matter summarily, as opposed to by indictment. This is because if the Crown proceeds by indictment, the accused will be subject to a more stringent sentence, if convicted.

So how does the limitation period on summary conviction offences apply to hybrid offences? The answer depends on how the Crown Attorney “elects” to pursue the charges. If the Crown proceeds summarily, then the limitation period will lapse 6 months after the date the offence was alleged to have committed. However, if the Crown proceeds by way of indictment, then there is no limitation period before which the charges need to be laid. Therefore, anyone who’s committed an offence that’s classified as either hybrid or indictable will not benefit from the protection provided by the criminal law limitation period.

If you have a question regarding the content of this blog, or wish to seek further legal advice on a related issue, please visit LawyerSelect.ca - Toronto's Premier Lawyer Referral Service

Unreasonable Delay - How Long Is Too Long To Wait For Your Criminal Trial?

noreply@blogger.com (iobject25) — Sat, 02 Dec 2017 01:17:00 +0000

Unreasonable Delay - How Long Is Too Long To Wait For Your Criminal Trial?

This blog is brought to you courtesy of LawyerSelect.ca - Toronto's Premier Lawyer Referral Service

Section 11(b) of the Canadian Charter of Rights and Freedoms states:

11. Proceedings in criminal and penal matters – Any person charged with an offence has the right

...

b) to be tried within a reasonable time;

The primary purpose of sec. 11(b) is to protect the individual rights of an accused person from. More specifically, the rights that are protected are: (1) security of the person, (2) the right to liberty, and (3) the right to a fair trial. The right to security of the person is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from things like pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh; meaning, that witnesses are still alive or still competent to testify, and that their recollection of the facts in question is still strong.

There is also, however, a secondary interest, which is that of society as a whole. This interest is most obvious when it parallels that of the accused. Meaning, society as a whole has an interest in seeing that citizens who are accused of crimes are treated humanely and fairly. There is, as well, a societal interest that is by its very nature adverse to the interests of the accused: there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the merits of their case.

The leading Canadian cases that deal with an unreasonable delay in getting to trail are R v. Askov and R v. Morin. In Morin, the Supreme Court of Canada held that the general approach to a determination of whether the sec. 11(b) right has been denied is not achieved by applying a mathematical or administrative formula, but rather by a judicial determination balancing the interests which the section is designed to protect against factors which have led to the delay. The factors to be considered are:

(1) The length of the delay;

(2) Any waiver of time periods by any of the parties to the trial;

(3) The reasons for the delay, including:

(a) The inherent time requirements of the case;

(b) The actions of the accused;

(d) Any limits on institutional resources; and

(e) Any other pertinent reasons for delay; and

(4) Any prejudice to the accused.

Generally speaking, the period which makes up the delay-analysis is the time elapsed from the date of the charge to the end of the trial. An inquiry into unreasonable delay will only usually take place if the period is of sufficient length to raise an issue as to its reasonableness. As such, a shorter period of delay will raise the issue if the accused can show prejudice, as for example if the accused was in custody prior to his or her trial. Moreover, if by agreement or conduct the accused has waived any part of this time period, the length of the period of delay will be reduced accordingly.

Each type of offence will have its own inherent time requirements, which inevitably lead to some delay. A common example of this sort of delay is the time required by both the defence and the Crown to review and prepare for the trial; the more complex the case, the greater its inherent time requirements. Additionally, all cases are subject to certain intake requirements and some cases must pass through a preliminary inquiry before reaching trial. For example, some cases that start off in Provincial Court, but then move up to Superior Court may go through a preliminary trial, which is held primarily for the purpose of ensuring that there is enough evidence to commit the accused for the charges he faces. The court will also need to consider whether the actions of either the accused or the Crown have led to delay. These latter two factors do not assign "blame" per se, but simply provide a convenient mechanism by which the conduct of the parties may be examined.

In considering the explanation for delay, the limits of institutional resources must be kept in mind. This is known as the “institutional delay” factor. Generally speaking, institutional delay runs from the time the parties are ready for trial and continues until the system can accommodate the proceedings. When assessing this factor, it must be kept in mind that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay. As such, there is a point in time after which the Court will no longer tolerate delay which results from resource limitations. Thus, In Morin, the Supreme Court issued some tentative guidelines regarding how long each case should take in both Provincial and Superior Court: 8-10 months in Provincial Court and an additional 6-8 months if the matter moves up to Superior Court. This guideline, however, is not a limitation period per se, nor does it fix a ceiling on delay. It should not be applied in mechanical fashion but must give-way to other factors when it is appropriate. As an example of when it is appropriate to depart from the guidelines is the existence or non-existence of prejudice. Logically then, the greater the prejudice is, the shorter the acceptable period of institutional delay that will be tolerated by the courts.

Prejudice may come in two forms, however. In addition to actual prejudice (such as pre-trial incarceration and restrictive bail), prejudice may be inferred from the length of the delay itself. The longer the delay, the more likely that such an inference of prejudice will be drawn by the Court. Thus, in cases where neither inferred nor actual prejudice is proved, the basis for the enforcement of the right to be brought to trial in a reasonable time is seriously undermined. In coming to this conclusion, the Supreme Court held that the purpose of the right is to expedite trials and minimize prejudice, and not to avoid trials on the merits.

So the answer to the question of “how long is too long” will depend on a host of factors, the existence of which will depend on the peculiar circumstances of each case.

If you have a question regarding the content of this blog, or wish to seek further legal advice on a related issue, please visit LawyerSelect.ca - Toronto's Premier Lawyer Referral Service.

Keywords: Charter; rights; unreasonable delay; trial within a reasonable time; prejudice; Askov; Morin; legal rights; criminal trial; criminal procedure; criminal proceedings;

Do I Have To Give Police My Cellphone Password?

noreply@blogger.com (iobject25) — Fri, 03 Nov 2017 12:10:00 +0000

Do I Have To Give Police My Cellphone Password?

This blog is brought to you by LawyerSelect.ca

As technology advances, both law enforcement and criminals will seek to use it to gain an advantage on the other. The duel between police and criminals is the embodiment of the notion of ebb and flow. One of them gains an upper hand temporarily, while the other rushes to catch up. This couldn’t be more true than it is for the case of cell phones. In August, 2016, a group made up of all the Canadian Chiefs of Police met and passed a non-binding resolution that called for the enactment of a law that empowers police to unlock digital devices. For some time now, police officials have sounded off complaints that high levels of criminal activity is going undetected, and the evidence of its commission is stored on encrypted mobile phones.

As it currently stands, there is no Canadian law that requires you to provide a police officer with the password to your mobile device. Police often look for corroborative evidence to the crime they're investigating you for. Why would you help them by incriminating yourself? In fact, even if your phone was not secured by a password, police would still need your consent to access it. Otherwise, they'd need a search warrant.

If you've been charged with a criminal offence, it's usually a wise decision not to provide them with a statement. Instead, contact us at LawyerSelect.ca, and we'll put you in touch a top-rank Criminal Lawyer who can defend you against the charges. We'll personally tailor the referral so that the Criminal Lawyer we connect you with fits your budget, speaks your language, lives in your area, and has the level of experience you're looking for.

The Evolution of Canadian Privacy Law:

Back in 2014, the Supreme Court of Canada decided a landmark case that dealt with privacy issues stemming from internet usage data. The Court ruled that individuals have a reasonable expectation of privacy in their internet usage information. This was a huge blow to law enforcement who, until that point, were readily requesting that sort of information from Internet Service Providers (ISPs) without obtaining a warrant. Now any such requests for data must be obtained by a warrant.

Privacy advocates hail the case as a real and concerted effort to protect the privacy of Canadians, while law enforcement officials see the new law as posing real challenges in being able to protect younger victims who may fall prey to internet pedophiles.

What Will Canada’s Privacy Laws Look Like in the Future?

The subtle balancing act of protecting individual liberties while enforcing the criminal law is something that’s not new to Canada. Since the widespread proliferation of the internet in the mid to late 1990s, law enforcement has tried to adapt to the changing criminal methodologies while maintaining the privacy rights of private citizens. While the future will almost certainly bring advancement in personal electronic devices and private communications, the laws may have to change with the shifting winds.

Does a Cellphone User Have A Privacy Interest in the Cell Records of an Account Held By Someone Else?

noreply@blogger.com (iobject25) — Fri, 03 Nov 2017 08:55:00 +0000

Does a Cellphone User Have A Privacy Interest in the Cell Records of an Account Held By Someone Else?

This blog has been brought to you by LawyerSelect.ca

In 2013, I represented a client who was charged with fraud over $5000. The Crown alleged that he drove drunk and hit his vehicle, and rather than reporting the collision, he abandoned the vehicle and reported it stolen the next day. During the course of their investigation, police obtained a production order for the cell records of my client’s cell phone. They used the cell tower records to show that my client wasn’t near where he said he was at the time in question. But the phone didn’t technically belong to my client; rather, the line was registered under his girlfriend’s name. However, he provided police with the number to that phone when they requested a contact number, and when asked if that was his number, he responded in the affirmative. At all material times, my client used the phone like it was his, and made it clear to others that it was his.

So several months down the road, and now I’m doing the trial prep for this case. It was clear from the get-go that I was going to have to challenge the admissibility of the production order. The Crown’s entire case rested on the cell tower records. I drafted a section 8 Charter Application seeking the exclusion of the cell tower records. The basis for my Charter challenge was that the ITO failed to establish reasonable grounds to believe that an offence has been or is suspected to have been committed and that the documents or data will afford evidence respecting the commission of an offence. Said another way, I argued that police didn’t have enough evidence to believe that my client falsely reported the theft of his vehicle. They were relying heavily on two pieces of circumstantial evidence: namely, that the car showed no signs of forced entry, and that lose change in plain sight was left behind in the vehicle. It was their contention that a key was used to access and operate the vehicle, and that leaving behind lose change were actions inconsistent with that of a thief.

So I began piecing my case together by listing all the reasons why the ITO was deficient... But hold on, in determining whether the evidence obtained by the police violated section 8, it must first be determined whether the Applicant has a reasonable expectation of privacy in the cellular telephone records… Only if and once they have established a reasonable privacy expectation must the second step of the test be addressed, whether the searches violated their section 8 rights by constituting an unreasonable intrusion on their rights to privacy. So does my client have a reasonable expectation of privacy in the cell phone records? Well, yah it’s his phone. Well, no it’s not, it’s his girlfriends’. But he’s the phone’s exclusive user; she’s just the account holder. Hmm… Let’s do some case law research.

The court in R. v. MacInnis, [2007] O.J. No. 2930 found that if the cell phone is used by a person other than the subscriber, with the consent of the subscriber, then the user has a reasonable, subjective expectation that the information will be kept confidential. Referring to PIPEDA, the court found that the statutory duty to keep the information confidential creates an objective expectation of privacy for such users. The obligations that now exist between the Applicants and their cellular phone service providers create a contractually based privacy expectation. The existence of that reasonable privacy expectation is legislatively supported by Parliament's enactment of PIPEDA, which prevents the disclosure by the service provider of personal information relating to subscribers in the absence of lawful authority. The very enactment of PIPEDA confirms Parliament's belief that information such as these records may be personal and capable of being disclosed only in the presence of lawful authority.

So does the evidence show that my client has a privacy interest in the cell phone records? The court in R v. Edwards, [1996] 1 S.C.R. 128 (S.C.C.), dealt with the issue of whether the accused has a privacy interest sufficient to give him standing to object to evidence being admitted. The court held that this must be determined on the basis of the totality of the circumstances of the particular case. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

Historical use of the property or item;
The ability to regulate access, including the right to admit or exclude others from the place or thing;
The existence of a subjective expectation of privacy; and
The objective reasonableness of the expectation.

Extrapolated to a case such as this, that test requires that questions be asked such as whether the Applicants had a subjective privacy expectation in the data, whether that expectation was reasonable, and whether it was a significant or only a lower privacy expectation. The determination of those questions must be informed by inquiries that might include whether the information was subject to a confidentiality obligation, whether the police technique used was intrusive in relation to the privacy interest, whether the particular investigative technology used was itself objectively unreasonable, and whether the data produced by the use of the technology exposed any intimate details of the lifestyles of the Applicants or information of a biographical nature. To that I would add that the extent of the privacy interest must be informed by the level of statutory protection given to it.

Do I Need The Other Person’s Permission To Record A Conversation?

noreply@blogger.com (iobject25) — Fri, 20 Oct 2017 00:10:00 +0000

Do I Need The Other Person’s Permission To Record A Conversation?

This blog has been brought to you by LawyerSelect.ca

There is a lot of misleading information out there about the law in Canada regarding recorded conversations. Some of that misinformation is as a result of American laws finding their way to Canadians through television shows and other mediums.

As it stands, the law in Canada states that it’s legal to record a conversation so long as one of the parties to the conversation consents. That means if you’re a party to the conversation, then you can legally record it, since you’re giving your consent. So, to be clear, you’re always allowed to record a conversation that you’re a party to without notifying the other party or parties or obtaining their consent.

However, the law is entirely different when the conversation in question is between other people, to which you’re not a party. As such, Canadian law makes a clear distinction between the legality of recording a conversation that you’re involved in, and one that you’re not. The Criminal Code of Canada codifies this rule by imposing a general prohibition on the recording of private communications, but then prescribes an exception where one of the parties to the conversation consents to its recording.

Police, and other state actors and authorities require prior judicial authorization to intercept private communications. Simply put, they need to get a warrant before they can eavesdrop or record any of your conversations, whether in person, over the telephone or online.

Aiding and Abetting: Think Twice Before Helping Out A Fugitive

noreply@blogger.com (iobject25) — Thu, 19 Oct 2017 14:09:00 +0000

Think Twice Before Helping Out A Fugitive

Aiding & Abetting

This blog has been brought to you courtesy of LawyerSelect.ca

In Dunlop and Sylvester v. R, the appellants were twice tried and convicted on a charge of rape. The indictment alleges that they did unlawfully have sexual intercourse with the victim without her consent. The appellants contend that they did no such thing, but rather, they were merely spectators at an event of which they had no prior knowledge. On appeal to the Manitoba Court of Appeal, the court found an error in the trial judge’s charge to the jury when he instructed them on the meaning of sec. 21(1)(b) of the CC. The trail judges read the following charge in response to a question by the jury:

“Intentionally omitting to do something for the purpose of aiding another to commit an offence, that if it had been done, would have prevented or hindered the person from committing an offence amounts to aiding and abetting”

However, the Court of Appeal applied sec. 613(1)(b)(iii), that the verdict would have been the same even in the absence of the error by the trial judge. The majority of the Supreme Court disagreed. Their definition of what amounted to aiding or abetting is summarized in the following way:

“… Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principle offender’s intention to commit the offence or attendance for the purpose of encouragement… A person cannot properly be convicted of aiding or abetting in the commission of acts which he does not know may be or are intended.”

As such, the Supreme Court found no evidence on which a properly instructed jury could have found beyond a reasonable doubt that the appellants were guilty of aiding or abetting the rape. Thus, did not agree with the Court of Appeal for Manitoba that the error by the trial judge could be saved under sec. 613(1)(b)(iii).

In R v. Laurencelle, the appellant was charged and convicted of aiding and abetting the unlawful confinement of the victim. Two men robbed and kidnapped the victim and brought him back to the home where the appellant lived with one of the men. During the four day confinement of the victim, the appellant, on several occasions, demonstrated acts of kindness to the victim, such as providing him with water and untying him to smoke a cigarette. At first instance, the trial judge found her guilty on the basis that she allowed the victim and the two men to remain in her home, which, the trial judge thought, amounted to more than passive acquiescence. She allowed her home to be used as a place of confinement, thereby encouraging the other co-accused in their venture. On appeal to the B.C. Court of Appeal, the justices stated the following:

“There is no basis for asserting that the appellant had sole control, and certainly no basis as a matter of common sense for suggesting that she had any effective way of requiring the co-accused to leave”

They distinguished the instant case from earlier cases where it was shown that the accused exercised a degree of control over the premises, or automobile used in the commission of the crime, that their acquiescence amounted encouragement. They also went on to state that they disagreed with the Crown’s submission that the acts of kindness shown by the accused amounted to aiding and abetting.

In R v. Logan, the appellant was convicted of attempted murder during the course of a robbery in which he was a party, but did not fire the weapon which seriously wounded the victim. He was convicted under sec. 21(2) of the CC, which imposes criminal liability on joint-venturers who form a common unlawful purpose (in this case, the robbery) and later a collateral crime results from one or more of their actions. The test imposes an objective standard of foreseeability on the joint-venturer (the non-principal). The appellant sought the leave of the Supreme Court for his conviction of attempted murder on the basis that the requisite degree of Mens Rea required for the principle for a charge of attempted murder was higher than that required for a party to the offence. The Supreme Court started off by saying that they cannot completely exclude the possibility that for certain crimes Parliament could not set different degree requirements of Mens Rea for the principle and the party. However, in the decision of Vaillancourt the Supreme Court held that for few offences the principles of fundamental justice require that a conviction cannot stand unless there is proof beyond a reasonable doubt of a minimum degree of Mens Rea. In other words, that decision established that for crimes of murder, a subjective assessment of intent is required. Therefore, they instituted a two-step test to assess whether a party to the offence had the requisite Mens Rea to found a conviction pursuant to sec. 21(2):

Is there a minimum degree of Mens Rea required by the principles of fundamental justice before one can be convicted as a principal for the offence in question?
If the principles of fundamental justice do require a minimum degree of Mens Rea, then that minimum degree is constitutionally required to convict a party to that offence.

The requisite Mens Rea required for a conviction of attempted murder was established in the case of Ancio – that of specific intent to kill. However, that case did not deal with Charter arguments relating to sec. 7. In R v. Martineau, Charter considerations were at the fore of that case, where it was held that subjective foresight of death was the minimum Mens Rea requirement for murder – not attempted murder. In reconciling the two decisions relating to two different charges, the Supreme Court, in this case, held that the only difference between a murderer and an attempted murderer is “consequence” component of the Actus Reus. Both are equally morally blameworthy. However, the underlying penal consequences for the two offences are dissimilar – attempted murder having a lower minimum sentence than that of murder. In responding to the perceived disparity, the Supreme Court held that as a basis for a constitutionally required minimum degree of Mens Rea, the social stigma associated with a conviction is the most important consideration, not the sentence. In other words, the sentencing range available to the Judge is not conclusive of the level of Mens Rea constitutionally required. As such, the Supreme Court concluded that the inclusion of the objective standard test for parties to an offence of attempted murder would violate sec. 7 of the Charter since it imposes an objective standard on the party and a subjective standard on the principle, while both are equally morally blameworthy. On an attempt to save the section as it applies to attempted murder via sec. 1 of the Charter, the Supreme Court held that it does not satisfy the proportionality test in Oakes because it unduly impairs an accused’s rights under sec. 7.

In R v. Portillo, which was argued before the Ontario Court of Appeal, established two important points:

First, it defines participation as “doing something that caused the death of the deceased or doing something for the purpose of helping another person to do something that caused the death of the deceased.” Additionally, “if the jury is satisfied that an accused participated in the killing as described above, it is unnecessary for the jury to determine the exact nature of that participation.”
Second, in regards to the application of sec. 21(2) – joint venturers in a common unlawful purpose – while the minimum requisite Mens Rea for murder is subjective intent, for manslaughter the objective test applies, in that “if a reasonable person would have foreseen the risk of harm to the deceased as a result of carrying out the common design, then he is as guilty as the principle.”

If you have a question regarding the content of this blog, or wish to seek further legal advice on a related issue, please visit LawyerSelect.ca.

If I Have a Criminal Record, Can I Still Act as a Surety?

noreply@blogger.com (iobject25) — Fri, 06 Oct 2017 22:16:00 +0000

IF I HAVE A CRIMINAL RECORD, CAN I STILL ACT AS A SURETY?

This blog is brought to you courtesy of LawyerSelect.ca

Let’s first begin by explaining what a surety is, and what they do. Put simply, a surety is often required when an accused person is granted bail and released from custody.

The Surety Explained –

When someone is charged with a criminal offence, sometimes they are released at the police station, and some other times they’re held until they can go before a court who will then decide if they get released on bail. A great majority of the time, the court will require that the accused have a surety in order to get bail. As such, a surety is basically someone who promises the court that they’ll keep an eye on the accused, until his or her charges have been dealt with. They’re usually required to live with the accused, supervise the accused, and ensure that the accused obeys all the terms of the bail agreement.

Some examples of these terms are:

· To live with your surety, or live at an address that your surety approves of.

· A curfew or house arrest.

· Attending all scheduled court dates.

· Reporting to the police station when required.

· Refraining from direct or indirect communication with the victim or complainant in the matter.

· Refrain from entering a predefined geographic boundary where the victim or complainant live, work, or are known to frequent.

· Refraining from the consumption and possession of drugs and/or alcohol.

· Keeping the peace at all times, and being of good behaviour.

Again, it’s the surety’s job to ensure that the accused obeys all the terms of the bail agreement (which is known as a recognizance of bail). If the accused breaches any of the terms of their bail, the surety could forfeit the money or assets that they pledged. This responsibility continues until the case is completely over, or they’re removed as the accused’s surety.

What Factors Do the Courts Consider when Assessing a Potential Surety?

The judge or the justice of the peace, depending on the level of court, is the ultimate decision-maker on the sufficiency of any proposed surety. When making their decision, the judge or justice of the peace will have different requirements for proposed sureties based on the charges that the accused is facing. In general, however, the judge or justice of the peace will consider the following factors in determining whether a proposed surety is acceptable or not:

· Surety’s financial means.

· Surety’s character and overall disposition.

· Surety’s criminal background or lack thereof.

· Surety’s relationship to the accused.

· Surety’s ability to effectively monitor the accused, and ability to enforce the terms of the bail agreement.

In order to make a determination on the above factors, the surety will often be required to testify under oath at the bail hearing. Typically, they’ll be questioned first by the accused’s defence lawyer, who will try and portray them in the best possible light. However, the surety will also be subject to cross-examination by the Crown prosecutor, who will bring to light any unsavoury facts about the surety. With that mind, we can now answer the question posited by this article: can a person with a criminal record act as a surety? The answer to that is: yes, there is no hard and fast rule that prohibits an individual with a criminal record from acting as a surety. The decision will fall entirely to the presiding judge or justice of the peace. However, there are certain criminal convictions that may render it inappropriate for a certain person to be acting as a surety for a certain accused. A prime example of this would be if the surety has a history of drug offences, and the accused is currently facing a drug charge. Similarly, a surety who has criminal convictions for crimes of dishonesty or failing to attend court, will likely be deemed inappropriate by a reviewing court, as confidence in that person’s ability to monitor the accused will likely have been eroded.

Former Maple Leaf Captain Rick Vaive Not Guilty Of Impaired Driving

noreply@blogger.com (iobject25) — Fri, 06 Oct 2017 14:38:00 +0000

Former Maple Leaf Captain Rick Vaive Not Guilty Of Impaired Driving

This blog is brought to you courtesy of LawyerSelect.ca

On April 12, 2012, the Toronto Star ran an article covering the acquittal of former Toronto Maple Leafs captain, Rick Vaive, and staying true-to-form, its readers were not short of comments and/or critique on the trial's outcome. As I read through the comments section at the bottom of the article, I began noticing that the majority of readers simply could not understand this "two-hour" rule. Put simply, the "two-hour" rule requires police to administer the first Intoxilyzer breath test back at the station within two hours of the time of driving. In the majority of cases, the "time of driving clock" begins ticking when you get pulled over, but there are scenarios where that is not the case, like if you've already made it home before the cops show up at your door. If the tests aren't taken within that two hour time-frame, the Prosecution can't directly rely on the readings. I'll explain in a moment what I mean by that. In any event, as I continued reading through the comments it became quite clear that people's confusion and anger with this rule was not unfounded, as the rule makes absolutely no sense without the proper background information. Here's what one bewildered reader wrote:

Very Lucky !

Why have alcohol breath testers ??? The "FACTS" were he blew over, PERIOD...end of story !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Who cares about any other stories of being tired or what "he" says he consumed on that day or how he acted on video at the station later... If the judge is going to ignore the "FACTS" of the breath machine and its readings then why have them ??? It obviously pays to hire a slick lawyer and be a celebrity.... Anyone else is convicted and goes to jail, FACT !!! This judge has certainly not done our youth any favors in setting examples for ones actions, especially when it comes to drinking and driving !!!! Next time i get pulled over and asked if i have been drinking ? You bet i have officer !!!! You think i'am going to drive sober with all these drunks out here...

I wish I'd been around when he wrote that so I could ask him how he really felt, but I digress. No, his frustration is completely understandable. The laws governing impaired driving and driving with an excess blood-alcohol concentration is notoriously complex and riddled with exceptions, and exceptions to the exceptions. Here's what I wrote back:

REPLY @ northernguy10

So you wanna know why there's a law requiring the tests to be taken within two hours? I'll explain: the Criminal Code allows police to administer the breathalyser at some point AFTER the time of driving. In most cases, this will be between 1 to 1 1/2 hours after the suspect was pulled over. Why is this relevant? Well, it's simple. The criminal code allows police and the Crown Attorney to read back the suspect's blood-alcohol concentration to the ACTUAL TIME OF DRIVING. So, in other words, the Criminal Code provide's law enforcement with the benefit of a short cut in the form of a "legal fiction", because we all know that an individual's blood-alcohol concentration is NOT the same 1 1/2 to 2 hours later after the time of driving. Remember, it's not a crime to be drunk 1 1/2 to 2 hours after driving. It's a crime to be drunk/over the limit at the time of driving. Now, you may be thinking "well, wouldn't a suspect's blood-alcohol concentration be higher at the time of driving than it would be 1 1/2 to 2 hours later?" The answer is: not necessarily. It's entirely dependant on when the suspect began consuming alcohol. For example, it is entirely possible for a person to chug 10 shots, get in the car, drive the 10 minute ride home and still not be impaired/drunk because the alcohol has not been absorbed by his/her body yet. However, if you were to take that same individual's blood-alcohol concentration, say, an hour after, he/she would most likely blow over the limit. So, the rule makes perfect sense: if law enforcement is to rely on the benefit of this "legal fiction", then they've gotta follow the rules. The rule in this case is that it's gotta be taken within 2 hours. Otherwise, they'll need to use a toxicologist to read back the readings, but that isn't nearly as convincing or as conclusive.

Now, I sort of glossed over the whole toxicologist part at the end there, but what I meant by that is this: if the tests were taken within the prescribed two hour time-frame, then the results of those tests are conclusive. It no longer matters what a suspect or his/her friends say with respect to how much alcohol he/she consumed that night. The results of the breath tests override any viva voce (oral) evidence given at trial. However, if the tests were taken outside the prescribed two hour time-frame, then, as I said earlier, the Crown Attorney cannot rely directly on the results of those tests, but rather, must call a toxicologist at trial to testify. The toxicologist's job will be to analyze the test results and give an expert opinion on what the suspect's projected blood-alcohol concentration would have been at the time of driving. The conclusion that a toxicologist may reach with respect to the suspect's blood-alcohol concentration at the time of driving may differ markedly from the test results produced by the Intoxilyzer machine. Why? Well, first and most obviously is because the toxicologist is determining the suspect's blood-alcohol concentration at the actual time of driving, as opposed to some time after that (usually 1 to 1 1/2 hours) which is what the breath samples are reflective of. The toxicologist will most likely determine whether the suspect was in the "absorption phase" or the "elimination phase". In the latter phase, the suspect's body is still absorbing the alcohol he/she consumed earlier, whereas in the former, his/her body has begun eliminating the earlier-consumed alcohol from their body. Why is this relevant? Well, it's simple: if the suspect consumed a large quantity of alcohol immediately before driving, then the suspect's body would likely be in the absorption phase, which means that there is a good possibility that his/her peak blood-alcohol level is yet to be reached. This is known as the Bolus Drinking Defence. This defence allows the suspect to testify him/herself as to the time and quantity of consumption, as well as have others who were with them testify on the same. In the absence of the conclusiveness of the breath tests (because taken outside two hours), the door is swung open to alternative/competing evidence which may (logically) contradict the results of those tests.

The Classification of Offences in Canada

noreply@blogger.com (iobject25) — Fri, 06 Oct 2017 14:36:00 +0000

The Classification of Offences in Canada

This blog is brought to you courtesy of LawyerSelect.ca

Summary Conviction Offences

These types of offences can only be heard in the Court of Criminal Jurisdiction. They are also time bared under the Statute of Limitations – a charge can only be laid prior to 6 months after the commission of the crime – sec. 786(2) of the Criminal Code. A summary conviction charge will begin with a document called an information (which contains alleged facts by the police and prosecution on the case). The maximum sentence for a summary conviction offence is 6 months imprisonment or a $2,000 fine, or both.

Appeals for summary conviction offences are heard in the province’s Superior Court.

Indictable Offences

An accused can choose the trial either to be heard by a provincial court judge in the Court of Criminal Jurisdiction, a Superior Court Judge in the Superior Court of Criminal Jurisdiction, or by a Superior Court Judge and jury. This choosing process is referred to as an election.

Sec. 469 of the Criminal Code lists a series of offences which MUST be heard by a judge and jury, giving the accused no choice of election – usually more serious indictable offences.

Sec. 553 of the Criminal Code lists a series of offences which MUST be heard by a provincial judge – usually the less serious of the indictable offences - again, leaving the accused with no choice of election.

For trials headed to a Superior Court, they must first pass preliminary inquiry at the provincial court level (evidentiary hearing). Some indictable charges will begin with a document called an information, but once past the preliminary inquiry, the prosecution will re-file a document called an indictment in the Superior Court where the trial is to be heard.

Indictable offences are those usually classified as having a maximum sentence that exceeds 2 years (that’s not to say that that is the sentence that will be imposed).

Appeals for indictable offences are heard by the province’s Court of Appeal – with leave to the Supreme Court in certain matters.

How You May Be Liable For Someone Else's Crime

noreply@blogger.com (iobject25) — Mon, 23 Apr 2012 20:13:00 +0000

How You May Be Liable For Someone Else's Crime

Counselling A Criminal Offence

This blog has been brought to you courtesy of LawyerSelect.ca

In R v. Sharpe, the Supreme Court held in this case that while the word “counsel” could have the ordinary meaning of “to advise”, for the purpose of the criminal law it must be limited to cases of actively inducing.

In R v. Hamilton, the Actus Reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. The Mens Rea for counselling is where the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.

If you have a question regarding the content of this blog, or wish to seek further legal advice on a related issue, please visit LawyerSelect.ca.

The Law Of Criminal Conspiracy - A Brief Introduction

noreply@blogger.com (iobject25) — Mon, 23 Apr 2012 20:09:00 +0000

This blog has been brought to you courtesy of www.ghobriallaw.ca

The essential elements of a conspiracy are:

The intention to agree;
Completion of the agreement; and
A common design to do something unlawful

The offence is complete before any acts, which go beyond mere preparation, are taken to put the design into effect – more preliminary than attempt crimes

Impossibility (factual) affords no defense to conspiracy

In R v. Gralewicz, the appellants were charged with unlawfully conspire to prevent members of a union from participating in the lawful activities of their union. The facts of the case, and the reasoning provided by counsel for the respondent are not important. Suffice it to say that this case centered upon the issue of whether or not the meaning of “unlawful purpose” alluded to in the section of the Code (namely, sec. 465) could include offences that were unlawful under the common law. The respondents argued that since the crime of conspiracy, as enacted by the Code, developed out of the common law, then the law necessarily has to include actions which the common law defined to be “unlawful purposes” for the purpose of a conspiracy charge. The Supreme Court agreed that the law of conspiracy, as enacted by the Code, did evolve from the common law, it did not agree that its mere enactment into a statutory offence would have the effect of extending its scope beyond that which the Code covered. Their Justiceships specifically cited sec. 8 of the Code as restricting them (the courts) from creating new criminal offences at common law, and removing from Canadian law all common law offences that are of force, or were in force, from the law of England. As such, the conduct alluded to in the indictment (namely, the conspiracy to prevent union members from exercising their rights), was not, of itself, an unlawful purpose or act within the meaning of the Code, or any other Federal or Provincial statute. As such, their Justiceships concluded that in order for a charge of conspiracy to stand, the unlawful purpose must be something prohibited by law.

In R v. Innocente, the appellant sought the leave of the Nova Scotia Court of Appeal against a charge by the Crown of conspiracy to traffic in narcotics. The appellant alleges that he had already been in jeopardy for this behaviour at the earlier trial and had been convicted of it, and so could not be placed on trail a second time for the same offence. The facts are that the appellant was charged and convicted for conspiring to traffic in narcotics in an earlier trial, but that that indictment only specified cannabis resign as the object of the conspiracy. The new indictment includes the trafficking of cocaine. As such, the Crown contends that the inclusion of a new object warrants a separate charge, distinct from the first. Thus, the question for the Court of Appeal in this case is whether new evidence that is pertinent to the object of the conspiracy (Ex. the inclusion of a new drug) can give rise to separate charges if there is no evidence (or if there is evidence that fails to pass the reasonable doubt standard) that the agreements for the different objects took place and materially different times. The Court of Appeal, drawing on earlier decisions such as R v. Saunders, concluded that the inclusion of a new object into the conspiracy could not warrant new charges. They stated that without evidence proving that the agreements to traffic the different drugs were made at materially different times, then the conspiracy to traffic both drugs must be taken to have occurred at the same time, and consequently, only warrant one charge. It is up to the Crown upon discovery of the new object to the conspiracy to file a motion with the court to amend the charges so as to include the new object.

If you have a question regarding the content of this blog, or wish to seek further legal advice on a related issue, please visit www.ghobriallaw.ca.

Top Stories

The Law On Attempted Crimes (Incomplete Crimes) - An Introduction

noreply@blogger.com (iobject25) — Mon, 23 Apr 2012 20:05:00 +0000

This blog has been brought to you courtesy of www.ghobriallaw.ca

In R v. Cline, the court stated that “… The consummation of a crime usually comprises a series of acts which have their genesis in and idea to do a criminal act; the idea develops to a decision to do that act; a plan may be made for putting that decision into effect; the next step may be preparation only for carrying out the intention and plan; but when that preparation is in fact fully completed, the next stop in the series of acts done by the accused for the purpose and with the intention of committing the crime as planned cannot, in my opinion, be regarded as remote in its connection with that crime. The connection is in fact proximate.” – Laidlaw J.A.

In R v. Ancio, the appellant was acquitted by the Court of Appeal for attempted murder, and the Crown appealed his acquittal to the Supreme Court. The appellant took a sawed-off shotgun to the residence of a man whom his wife was living with. In a struggle that ensued, the gun was accidentally discharged, not striking the man. The appellant contends that he had no intention to kill. The Crown seeks to overturn the Court of Appeals decision that the necessary Mens Rea required for attempted murder is “an intention to cause death, or an intention to cause bodily harm knowing it to be likely to cause death and being reckless whether death ensues.” The Crown relies squarely on the idea that sec. 24 and 231 of the CC should be interpreted in conjunction with one another to give rise to a lower Mens Rea threshold. They argue that the intention for attempted murder should extend to an intention to do that which constitutes the commission of the offence of murder as defined in sec. 230 and 231 – certain unlawful acts which, if committed and death ensues, which be considered murder regardless of intention. The Supreme Court, in affirming, yet modifying the Court of Appeal’s decision began by:

First identifying the fundamental differences between inchoate and complete crimes: They stated that while it is the Actus Reus which is the most important aspect in complete crimes and the aspect sought to be most deterred, it is the Mens Rea in inchoate crimes which is of primary importance. Thus, special attention must be paid to the Mens Rea in assessing the requirements for inchoate crimes.
Second, without invoking Charter considerations, they stated that they “find it impossible to conclude that a person may intend to commit the unintentional killings described in sec. 230 and 231” which the Crown relies on to advance their argument. They specifically cite academic critique which states that “it is illogical to insist upon a higher degree of Mens Rea for attempted murder, while accepting a lower degree amount to recklessness for murder.” They rebut this by stating that “if there is any illogic in this matter, it is the statutory characterization of unintentional killings as murder” – citing obviously sec. 230 and 231.

Thus, they concluded that the Mens Rea for attempted murder is the specific intent to kill.

In R v. Sorrell and Bondett, the appellants were charged and acquitted for attempted robbery. The facts of the case are that both accused showed up at a pizza store around closing time, but were rejected entry because the store had closed early. The cashier witnessed one of the men holding a gun in their hand, and both men were wearing ski masks. They were apprehended a short while later down the street. The Crown appealed the trial judge’s acquittal on the grounds that he erred in law in applying evidence, which he had accepted as reliable, which should have amounted to a guilty verdict. It is to be remembered that “whether an act by a person who has intent to commit an offence is or is not mere preparation to commit the offence is a question of law”. The Ontario Court of Appeal was of this opinion: first, in order to establish the commission of attempted robbery, it is necessary for the Crown to prove that the respondents:

Intended to do that which would in law amount to robbery (Mens Rea)
Took steps in carrying out that intent which amount to more than mere preparation

The Court of Appeal was adamant that it is not logical or appropriate to make a determination whether the acts of the respondents went beyond mere preparation until you first find the intent with which those acts were done. In this case, there was no evidence of intent to rob other than that furnished by the acts relied on as constituting the Actus Reus. Therefore, they concluded, that in the absence of extrinsic evidence (such as statements of intention or admissions by the respondents showing what their intention was) acts of the accused, which on their face are equivocal, may be insufficient to show that the acts were done with the intent to commit the crime, and hence insufficient to establish the offence of attempt.

In R v. Deutsch, the appellant was charged, acquitted, and convicted on appeal on the charge of attempting to procure a person to have illicit sexual intercourse with another person, contrary to sec. 195(1)(a) of the CC. The appellant is an employer who advertized an employment opportunity for a secretary/sales assistant in local newspapers. While attending the interview, an undercover police officer was told by the appellant that a job requirement would be to potentially have sexual intercourse with clients in order to finalize business deals.At first instance, the trial judge found that the necessary Mens Rea was present, in that he intended that a person hired for the position should have sexual relations with clients, but he held, as a matter of law, that the acts or statements of the appellant did not, in the absence of an offer of employment, constitute the Actus Reus of an attempt to procure. Therefore, the question before the Supreme Court was “when do the acts of the appellant amount to more than mere preparation”. Their Justiceships cited with approval a statement made by Laidlaw J.A. in R v. Cline, where he said

“The Actus Reus must be more than mere preparation. But when the preparation to commit a crime is in fact fully complete and ended, the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an Actus Reus sufficient in law to establish a criminal attempt to commit that crime.”

In adding to that statement, their Justiceships stated that “relative proximity may give an act which might otherwise appear to be mere preparation the quality of attempt.” Additionally, they said that “an act which on its face is an act of commission does not lose its quality as the Actus Reus of attempt because further acts were required or because a significant period of time may have elapsed before the completion of the offence.” For the case at bar, the Supreme Court held that the act which broke the barrier between mere preparation and “next step” was the holding out of the large financial rewards the secretary would have made during the course of the interviews. They came to this conclusion because they felt that there would be little else that the appellant would be required to do towards the completion of the offence other than to make the formal offer of employment.

In United States v. Dynar, the respondent was part of a failed undercover sting conducted by the FBI where his role was to launder money, which he believed to be the proceeds of crime, but that, in fact, were not – the money was never laundered because of the FBI’s failure. The Canadian law, as it stood at the time, required that money actually be the proceeds of a crime in order to find guilt for a charge of laundering. Because of this discrepancy between national laws, the respondent contends that his alleged conduct amounts to a legal impossibility – that being, that even if he believed his conduct was illegal in that he agreed to launder money, it was in fact not illegal under Canadian law to do so unless the money was from the proceeds of a crime – which it was not, since it was US Government money used for the sting. He further contends that with regards to attempted crimes, sec. 24(1)’s reference to the impossibility of crimes – “…whether or not it was possible under the circumstances to commit the offence – relates only to what he calls factual impossibilities and not legal possibilities. The Supreme Court, in disagreeing with the respondent’s legal contentions, seeks to:

Clarify the meaning of sec. 24(1) with respect to impossibility, and
Clarify the long standing distinction between factual and legal impossibility.

In Canadian law, they stated, there is no such concept as that of legal impossibility – rather there is something known as imaginary crimes – discussed below. In assessing whether or not the respondent committed an illegal act, the Supreme Court drew up a number of scenarios which all led to the impossibility of the crime occurring. First, they drew the picture of the criminal who attempts to pickpocket someone only to find an empty pocket, and the man who intends to steal someone else’s umbrella, only to steal his own. They are both guilty of attempted crimes. Their Justiceships stated that “each takes some steps in the direction of consummating their design (criminal design that is). And each is thwarted by a defect in the attendant circumstances, by an objective reality over which he has no control.” They go on to say that “just because a man’s design is premised on a mistaken understanding of the facts (the fact that the umbrella stolen belonged to him) does not make it any less his design. A mistaken belief cannot be eliminated from the description of a person’s mental state simply because it is mistaken. If it were otherwise, the effect would be to eliminate from our criminal law the defense of mistaken belief.” Therefore, if a person takes active steps in the pursuit of conduct which he knows to be illegal, but because of some factual circumstance, his conduct is not illegal in its result, he is still guilty of an attempt to commit that crime since he had the requisite Mens Rea required and took steps to fulfill his design that are more than merely preparatory. This type of scenario falls within the ambit of factual impossibility. The Supreme Court, however, sought to draw the distinction of the above scenario from one in which a person brings sugar into Canada, believing its importation to be an offence. In the former scenario, the would-be thief has the Mens Rea associated with thievery. However, in the latter scenario, the would-be smuggler has no Mens Rea known to law, since it is not illegal to do what he did. This is known as the imaginary crime. Applying these principles to the case at bar, one can say the following: the respondent necessarily falls into the former scenario (that being one of factual impossibility). While it might be a necessity of Canadian law that the money need be from the proceeds of a crime in order to justify a laundering conviction, the appellant did not know this. He was, admittedly, under the impression that it was from the proceeds of crime. Therefore, he possessed the necessary Mens Rea for laundering – a Mens Rea which is recognized by law – and took steps that amounted to more than mere preparation to furnish the commission of the crime. As such, his appeal not to be extradited was dismissed.

If you have a question regarding the content of this blog, or wish to seek further legal advice on a related issue, please visit www.ghobriallaw.ca.

Top Stories

Self-Defence - An Introduction

noreply@blogger.com (iobject25) — Mon, 23 Apr 2012 19:57:00 +0000

This blog has been brought to you courtesy of www.ghobriallaw.ca

The Criminal Code definition of Self-Defence is as follows:

Sec. 34(1) – generally applies where a person has been unlawfully assaulted, without having provoked the assault. Force may be repelled by force provided the responsive force is not intended to cause death or GBH and is no more than necessary to enable the accused to defend themselves. No further use of force is justified.
Sec. 34(2) – is more specific. The subsection applies where the responsive force applied by one who has been unlawfully assaulted by another causes death or GBH, and requires that the death of or GBH to the assailant be caused under a reasonable apprehension of death or GBH from the initial assault or its pursuit. The responsive force must be inflicted in the belief, on reasonable grounds, that the person assaulted cannot otherwise preserve oneself from death or GBH. The use of “reasonable” imports an objective element. Unlike sec. 34(1), this provision applies even where the accused has provoked the assault.

Therefore, sec. 34(2) applies even where (1) the accused provoked the assault, (2) even if the accused intended to kill or cause GBH, and (3) the question is not whether more force was used than necessary, but whether the accused believed on reasonable grounds that he could not otherwise preserve himself from death or GBH.

In R v. Pintar, the accused was charged with two counts of second degree murder. The facts of the case are not important, however the Ontario Court of Appeal took the opportunity presented in this case to give clearer guidance to trial judges on their charge to the jury. They stated that trial judges should consider the following guidelines when faced with the prospect of charging a jury on the law of self-defence:

Consider the evidence carefully with a view to determining the essence of the claim to self-defence and the Code provision(s) realistically available to that claim.
To the extent that the evidence fails the “air of reality” test in respect of one or more of the constituent elements of a particular provision, that provision should not be left with the jury.
To the extent that the evidence clearly establishes one or more of the constituent elements of a particular provision, Crown counsel should be encouraged to admit the underlying facts and thereby avoid unnecessary legal instruction.
Where a particular provision affords the accused a wider scope of justification than a companion provision, the narrower provision should only be put to the jury if the evidence lends an “air of reality” to the factual underpinnings of that provision, and the provision somehow fills a gap unaccounted for in the justification afforded by the wider provision.

In regards to the similarities between sec. 34(1) and sec. 34(2), and the tendency of trial judges to instruct the jury on both, the Court of Appeal stated that “since provocation and intent are matters of fact for the jury, sec. 34(1) cannot be ruled out, even though the scope of its justification is much narrower than that provided for by sec. 34(2). The question then becomes whether the risk of confusing the jury and complicating the charge itself justifies the inclusion of instruction under sec. 34(1), when its application is at best tenuous and its scope of justification narrower than that available under sec. 34(2). The Court of Appeal came to the conclusion that when trial judges are faced with situations like this, they should call upon counsel to justify instruction on the narrower provision. If the results of that exercise reveal either the lack of an evidentiary base for putting the narrower provision, or an inability to demonstrate how the narrower provision might be available to fill a gap not provided for by the broader one, the narrower provision should be discarded.

In R v. Deegan, the Alberta Court of Appeal was faced with the question of whether a retreat by the accused is imperative for the invocation of self-defence. The Court rejected that proposition, citing the Supreme Court decision in R v. Howe, where Dickson C.J. advocated the removal of the “retreat” criterion. He stated “Rationally, the failure to retreat is a circumstance to be considered with all others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt… Detached reflection cannot be demanded in the presence of an uplifted knife.”

In R v. Lavallee, the appellant was a battered woman in a volatile common law relationship who killed her partner late one night by shooting him in the back of the head as he left her room. She pleaded self-defence and was acquitted at first instance, but that decision was overturned by the Manitoba Court of Appeal. In allowing the appellants appeal, the Supreme Court stated that there are two elements of the defence under sec. 34(2) of the Code which merit scrutiny for present purposes. The first is the temporal connection in sec. 34(2)(a) between the apprehension of death of GBH and the act allegedly taken in self-defence – was the appellant “under reasonable apprehension” of death or GBH at the time alleged? The second is the assessment in sec. 34(2)(b) of the magnitude of the force used by the accused – was the accused’s belief that she could not “otherwise preserve herself from death or GBH” except by shooting the deceased based on reasonable grounds? The feature common to both sections is the imposition of an objective standard of reasonableness on the apprehension of death and the need to repel the assault with deadly force. The traditional view has been that if there is a significant time interval between the original unlawful assault and the accused’s response, one tends to suspect that the accused was motivated by revenge rather than self-defence. This was the majority’s decision in R v. Whynot, where the court held that “… no person has the right in anticipation of an assault that may or may not happen, to apply force to prevent the imaginary assault.” The implication of this statement is that it is inherently unreasonable to apprehend death or GBH unless and until the physical assault is actually in progress, at which point the victim can presumably gauge the requisite amount of force needed to repel the attack and act accordingly. This theory may seem cogent, but it fails once one considers the nature of the battered woman’s syndrome. Expert evidence heard during the trial put forward what is known as the Walker Cycle Theory of Violence. Essentially this theory states that there are three distinct phases associated in a recurring battering cycle:

First, there is tension building, where there is a gradual escalation of tension displayed by discrete acts causing increased friction such as name-calling, other intention behaviours, and/or physical abuse. The woman attempts to do what she thinks might please him, or at least, what will not further aggravate him. However, the tension continues to build. Exhausted from the constant stress, she usually withdraws from the batterer. He begins to move more oppressively toward her as he observes her withdrawal.
The second phase is characterized by the uncontrollable discharge of the tensions that have built up during phase one. The batterer typically unleashes a barrage of verbal and physical aggression that can leave the woman severely shaken and injured. This is the phase when injuries usually occur.
The third phase is where the batterer may apologize profusely, try to assist his victim, show kindness and remorse, and shower her with gifts or promises. This is the phase which provides positive reinforcement for remaining in the relationship.

A battered woman is someone who has gone through the phases at least twice. The relevance of such a theory is many-fold.

First, the mental state of an accused at the critical moment she pulls the trigger cannot be understood except in terms of the cumulative effect of months or years of brutality.
Second, an aspect of the cyclical nature of the abuse is that it begets a degree of predictability to the violence. This means that it may in fact be possible for a battered spouse to accurately predict the onset of violence before the first blow is struck. Research shows that battered woman can say what made the final episode of violence different from the others: they can name the features of the last battering that enabled them to know that this episode would result in life-threatening action.

Thus, expert testimony can assist the jury in determining whether the accused had a “reasonable apprehension of death” when she acted by explaining the heightened sensitivity of a battered woman to her partner’s acts.

Sec. 34(2) requires that an accused who pleads self-defence to believe “on reasonable grounds” that it is not possible to otherwise preserve herself. Thus, her failure to leave the abusive relationship earlier may be used in support of the proposition that she was free to leave at the final moment. Expert testimony can provide useful insights on this issue as well. A lot has been written in recent years about this phenomenon – namely, the battered spouse staying with the batterer. There are said to be two main reasons why this occurs. First, the abused spouse gets beaten so badly that she loses the motivation to react and becomes helpless and powerless. Second, the batterer often begs for forgiveness, and the battered spouse (who is suffering at this point from a damaged self-esteem) feels needed and his desire to keep her around makes her feel worthwhile. Another view which rests on a similar footing is what is known as traumatic bonding. This has been observed between hostages and captors, concentration camp prisoners and guards, etc…

Therefore, the Supreme Court concluded that it is not for the jury to pass judgement on the fact that an accused battered woman stayed in the relationship. Still less is it entitled to concluded that she forfeited her right to self-defence for having done so. The question the jury must ask itself is “whether, given the history, circumstances and perceptions of the appellant, her belief that she could not preserve herself from being killed by the batterer that night except by killing him first was reasonable”.

If you have a question regarding the content of this blog, or wish to seek further legal advice on a related issue, please visit www.ghobriallaw.ca.

Top Stories

Keywords: Self-Defence; Self Defence; Self-Defense; Self Defense;

Duress - An Introduction

noreply@blogger.com (iobject25) — Mon, 23 Apr 2012 19:47:00 +0000

This blog has been brought to you courtesy of www.ghobriallaw.ca

Sec. 17 of the Code and the Common Law require the following to be proved:

The threats by which the accused is compelled must be of immediate death or bodily harm;
The threats must emanate from a person who is present when the offence is committed;
The accused must believe the threats will be carried out; and
The accuse must not be a party to a conspiracy or association.

In R v. Paquette, the appellant was charged with non-capital murder pursuant to sec. 21(2) of the Code, where it was alleged that he had formed a common unlawful intention with the principles of the offence. He argued, however, that he was compelled by threats of violence and/or death, thus raising the defense of duress covered by the Code in sec. 17 – compulsion by threats. That section, however, excludes the use of the defense of duress for certain crimes; namely, treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson of an offence under sec. 280 to 283 (abduction and detention of young persons). In delivering their judgement as to the applicability of sec. 17 to the crime charged, the Supreme Court was of this opinion:

“The section (sec. 17) uses the specific words “a person who commits an offence”. It does not use the words “a person who is a party to an offence”. This is significant in the light of the wording of sec 21(1) which, in paragraph (a), makes a person a party to an offence who “actually commits it”. Paragraphs (b) and (c) deal with a person who aids or abets a person committing the offence. In my opinion (Justice Martland), sec. 17 codifies the law as to duress as an excuse for the actual commission of a crime, but it does not go beyond that”

The appellant, in the present case, did not himself commit the offence of robbery or murder. In citing the recently decided case of DPP v. Lynch in the House of Lords, where the accused was a party to the offence, the Supreme Court stated that “if the defence of duress can be available to a person who has aided and abetted in the commission of murder [so as to be liable under 21(1) (b) or (c)], then clearly it should be available to a person who is sought to be made a party to the offence by virtue of sec. 21(2). A person whose actions have been dictated by fear of death or grievous bodily harm cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to cooperate.”

In R v. Hibbert, the appellant was charged with attempted murder based on the allegation that he was a party to the shooting of C by B. The Supreme Court, in a unanimous decision, sought to clarify the conceptual foundation of the defence of duress.

First, In Paquette, Justice Martland held that in regards to sec. 21(2) of the Code, the Mens Rea of the crime charged would necessarily be negated since “… a person whose actions have been dictated by fear of death or grievous bodily harm cannot be said to have formed a genuine common intention…” The Supreme Court, in this case, was of the view that the defense of duress provided an excuse, as opposed to negating the Mens Rea. To hold otherwise, would confuse the matter as one based on the concept of Mens Rea. Therefore, they concluded that the expression “for the purpose of aiding” in sec. 21(1)(b), properly understood, does not require that the accused actively view the commission of the offence he is aiding as desirable in and of itself. Additionally, the same principle would apply in the application of sec. 21(2).
Second, in seeking to justify the defence’s theoretical underpinnings, their Justiceships found it suitable to compare it to the defence of necessity. The defence of necessity, as explained by Justice Dickson in Perka, is based on the idea that the defence is excusatory, not justificatory, and is predicated on the idea of normative involuntariness – making it a species of the Actus Reus branch, as opposed to that of the Mens Rea. In other words, while the accused may have voluntarily called down the victim to the lobby (in that he had physical control over his actions), his choices to act were limited by the overarching threat of death or bodily harm.
Third, as with necessity, there must be a requirement that the defence only be invoked when there is “no legal way out” of the situation of duress. For duress, this is known as the safe avenue of escape requirement. This requirement is consistent with the rationale of the defence based on normative involuntariness. If the accused could have escaped without undue danger, the decision to commit an offence becomes “a voluntary one, impelled by some consideration beyond the dictates of duress”.
Fourth, in determining whether the “safe avenue of escape requirement” is to be judged on a subjective or objective basis, their Justiceships chose, again, to maintain the consistency with other like defences. They adopted the modified objective test. Even if it is accepted that an actor’s failure to take steps to acquire reasonable knowledge of his or her full range of options can, in itself, constitute a form of choice, it can still be argued that this only holds true when the actor is able to acquire and process additional information. That is, a person does not choose inaction when he is incapable in the first place of acting, or of knowing when to act. Thus, an argument can be made for framing the objective standard in terms of the particular actor’s capacities and abilities. Their Justiceships wished to distinguish between the sort of objective standard test to be applied in criminal defences, and that which is applied to criminal conduct – particularly citing Creighton, which dealt with unlawful act manslaughter contrary to sec. 222(5)(a) of the Code. The test there was one which employed a single, uniform standard of care subject to one exception: incapacity to appreciate the nature of the risk which the activity entails. The justification for that approach in Creighton was that “people may properly be held to a strict objective standard as a condition of choosing to engage in activities which may maim or kill other innocent people. In contrast, excuse-based defenses, such as duress, are predicated precisely on the view that the conduct of the accused is involuntary, in the normative sense – that he had no realistic alternative course of action available.

If you have a question regarding the content of this blog, or wish to seek further legal advice on a related issue, please visit www.ghobriallaw.ca.

Top Stories

Keywords: Duress; Establishing Duress; Duress Requirements; Legal Advice;

Search Warrants - An Introduction

noreply@blogger.com (iobject25) — Mon, 23 Apr 2012 19:40:00 +0000

This blog is brought to you courtesy of www.ghobriallaw.ca

Generally speaking, a search warrant is an order of the court issued by a judge or justice of the peace that authorizes law enforcement officials (or some other government agents) to conduct a search of a person or location for evidence of a crime and to seize evidence if it is found. Since the enactment of the Canadian Charter of Rights and Freedoms, the Supreme Court has, on my occasions, commented and defined the circumstances surrounding the issuing and enforcement of search warrants.

Hunter v. Southam was the first post-Charter case that dealt with search warrants to reach the Supreme Court. One of the central issues identified in Hunter was whether the newly enacted sec. 8 of the Charter – the right to privacy – changed how search warrants should be issued. In Hunter, the director of the Anti-Competitive Trade Board was statutorily empowered to issue a search warrant allowing investigators to search and seize documents of companies suspected in engaging in anti-competitive practices. Southam challenged the constitutionality of the director’s power to issue search warrants, arguing that he was not a neutral arbitrator who could weigh the competing interests objectively, since he was too closely linked to the investigatory role of the Board. By competing interests, one is referring to society’s interest in investigating anti-competitive practices versus the individual’s interest in being free from government intrusion. The Supreme Court agreed with Southam’s position and held that the person charged with issuing a search warrant must be an impartial arbitrator who can act judicially, and who is devoid of any interest in the outcome of the search. Additionally, the neutral arbitrator had to be satisfied on the evidence presented to him that there exists reasonable and probable grounds that the offence has been committed, and that evidence pertaining to the offence would be found at/on the place or person in question. Moreover, in order to safeguard the interest of the individual to be free from arbitrary search and seizer, the Supreme Court added the further requirement that a search warrant be obtained before the search. This might seem like an obvious precondition, but what had actually occurred until the decision of this case was that investigators would justify the need for the search on materials or information that was obtained through a warrantless search. This is known as justification on an ex post facto basis. The Supreme Court unequivocally denounced this practice.

Three years after Hunter, the Supreme Court heard the case of R v. Collins. The main issues decided in this case were what burden of proof the accused bore in proving a violation of his/her sec. 8 (privacy) rights, what circumstances give rise to a presumption that an unreasonable search took place, and what factors to consider in rebutting that presumption. The Collins Court held that where the accused claimed his sec. 8, right to privacy, was infringed, he/she bore the burden of proving that this was so, on the balance of probabilities (otherwise known as the civil standard of proof). However, where the search or seizure was conducted without a warrant, the search is automatically presumed to be unreasonable. The prosecution may attempt to rebut that presumption by showing on the balance of probabilities that (1) the search was authorized by law (this includes both statute and common-law), (2) the law itself is reasonable, and (3) the search was conducted in a reasonable manner. If the prosecution is unable to establish that these three requirements existed, then the search or seizer is deemed to be unreasonable.

Unfortunately, that is not the end of the inquiry. Even if the search or seizer is held to be unreasonable, the burden shifts back to the accused to prove that the evidence should nonetheless be excluded. This is known as the sec. 24(2) analysis. This section is the remedies provision of the Charter, and as such, possesses its own inquiry. This inquiry was recently refined by the Supreme Court in the joint-cases of R v. Grant and R v. Harrison. For all practical purposes, the Supreme Court has now made it much harder for the accused to exclude what is otherwise unlawfully obtained evidence. In order to exclude unlawfully/improperly obtained evidence under sec. 24(2), the accused must: (1) convince the court that the breach is serious enough; (2) the impact on the Charter-protected interests of the accused is significant enough to outweigh society’s interest in the adjudication of the case on its merits. In conducting this balancing exercise, the Court must assess each of these three factors to determine whether a reasonable person, fully informed of the all of the circumstances and the values underlying the Charter, would conclude that the (3) admission or exclusion of the evidence could bring the administration of justice into disrepute. When asking this question, the focus is on the damage that condoning the Charter violation by accepting or rejecting the fruits of an unlawful search or seizure could do to the long-term interest in maintaining the integrity and public confidence in the justice system.

Under part one of the sec. 24(2) test – seriousness of the breach – the main focus is on assessing the blameworthiness of the conduct. This focuses most intently on the state of mind of the officer (or other government agent) about his/her Charter compliance, but extends to include systemic or institutional failures in Charter compliance. Moreover, the Charter-infringing state conduct will be more serious where it is part of a larger pattern of Charter violations committed during the investigation of the accused – Ex. If the accused’s “right to counsel” was also infringed during the search.

Under part two of the sec. 24(2) test – significance of the impact of the unreasonable/unlawful search – the significance of the impact of the violation on the accused is garnered by examining the nature and degree of intrusion of the Charter breach into the Charter-protected interests of the accused. The way the impact is assessed varies with the kind of evidence sought to be admitted. Is the evidence an inculpatory statement, a bodily sample or other physical evidence that would have been discoverable? Generally speaking, the degree of intrusion that occurs when statements are unconstitutionally obtained is high. The degree of intrusion caused when bodily samples are secured depends upon the extent to which privacy, bodily integrity, and human dignity are compromised given the nature of the samples and the manner in which they are secured. The significance of the impact of the violation where non-bodily physical evidence is obtained turns primarily on the manner of discovery and the degree to which the manner of discovery undermines the Charter-protected privacy interests of the accused, although privacy interests related to the nature of the non-physical evidence also fall to be considered. For example, unreasonable pat-down searches are more offensive than property searches; but property searches can further be broken down into one’s home, one’s car, one’s office, etc…

Finally, under part three of the sec. 24(2) test – society’s interest in adjudication on the merits — the weight to be accorded to society’s interest in the adjudication of the case on its merits varies according to (1) the reliability of the evidence and (2) the importance of that evidence to the case for the prosecution. Courts are to determine whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking function of the criminal trial.

If you have a question regarding the content of this blog, or wish to seek further legal advice on a related issue, please visit www.ghobriallaw.ca.

Top Stories

Keywords: Search Warrants; Warrants; Hunter v. Southam; R v. Grant; R v. Harrison; Section 24(2); Sec. 24(2); S. 24(2); Charter; 24(2) Analysis; Excluding Evidence; Excluded Evidence; Inadmissible Evidence; Inadmissibility of Evidence;

The Relevance Of A Police Officer's Disciplinary History To Your Trial - A "How To"

noreply@blogger.com (iobject25) — Mon, 23 Apr 2012 19:32:00 +0000

This blog has been brought to you courtesy of www.ghobriallaw.ca

Have you ever been left with the feeling that the officer who arrested you didn’t exactly fit the “poster-boy” description of that honest, noble, cop who only acts in good faith? Did the officer “over react” when you asked him why you were being arrested, prompting him to use excessive force, or did he write something in his notes that you’re sure isn’t true? These scenarios make up just a few examples of what “police misconduct” may be defined as. Ascertaining whether or not an arresting or investigating officer in your case has prior acts of misconduct may help strengthen your case by either showing the officer has committed this sort of behaviour in the past, and thus, is the type of person who would do it, or by casting a general, negative shadow over the officer’s credibility as a result of prior acts of misconduct.

The Police’s Duty to Disclose Misconduct to the Crown Attorney

The Supreme Court issued a ruling back in 2009 which has the effect of requiring the police to hand over records regarding the discipline, misconduct and criminal convictions of its officers as part of its disclosure obligation to the defence in criminal proceedings. The ruling in R. v. McNeil is widely interpreted as having advanced the law surrounding the transparency and accountability of police officers by routinely opening up police records for inspection. The police’s duty to disclose all acts of misconduct by one of its members is, however, made directly to the Crown Attorney and not to you or your defence counsel. Moreover, not all acts that may fall under the definition of “discipline, misconduct or criminal convictions” are required to be disclosed. The Ferguson Report, which dealt specifically with the Toronto Police Services, drafted a number of recommendations relating to when disclosure of police records should be compulsory, which the Supreme Court in McNeil later adopted. The Report stated that automatic disclosure should be made regarding acts of misconduct by a member of the Toronto Police Service who may be a witness or who was otherwise involved in a case before the court when any of the following exist:

Any conviction or finding of guilt under the Criminal Code or under the Controlled Drugs and Substances Act [for which a pardon has not been granted].
Any outstanding charges under the Criminal Code or the Controlled Drugs and Substances Act.
Any conviction or finding of guilt under any other federal or provincial statute.
Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act.
Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued.

The Crown Attorney’s Duty to Disclose Officer Misconduct to You

As an accused person, your primary (and most likely, only) avenue of disclosure in obtaining these records is not through the police directly, but rather, through the Crown Attorney’s Office. The Crown has a positive duty to disclose to you all relevant information pertaining to your case that is in its possession. This duty to disclose is ongoing and lasts from the time when the initial charge is laid, until your matter comes to some sort of conclusion. Upon receiving any evidence of officer misconduct from the police, the Crown act as "gate-keeper" by sorting out what parts of this material, if any, should be turned over to you in compliance with its obligation of disclosure. It is this “gate-keeping” function of the Crown, and its necessary use of discretion, which is the subject of most disagreements between the Crown and the defence. The Crown may view the prior acts of officer misconduct as completely irrelevant to the charges you’re facing. The defence may have a much different view, as is often the case.

Determining Relevance – Law

Thankfully, the Crown’s assessment of what is and is not relevant is one that is reviewable by a Court. The Crown bears the burden of convincing the court that the prior acts of misconduct are “clearly irrelevant”. In the legal world, that sort of standard is considered quite high, and therefore, the question of relevance will be front and centre in the proceedings. Before embarking on the relevance assessment, however, the court must bear in mind two key legal-assumptions.

The first is that the material in possession of the Crown is assumed to be relevant to the accused's case. The logic behind that is if the material were not relevant, then the Crown would not have obtained possession of it.
The second assumption is that material in the Crown’s possession will likely comprise the case against the accused – whether or not it eventually is. Bearing those two assumptions in mind, the next step for the court will be to assess the true relevancy of the targeted record in the case against the accused.

For all practical purposes, the outcome of the relevancy assessment will usually be largely determinative of the production issue, since the accused's right to make full answer and defence will, with few exceptions, tip the balance in favour of allowing the application for production. However, if the court is satisfied that the documents are clearly irrelevant, there is no basis for compelling production to the accused, and the application can be summarily dismissed.

Determining Relevance – Application

As a general rule, when the police misconduct in question concerns the same incident that forms the subject-matter of the charge against you, disclosure of information concerning police disciplinary action taken in respect of that misconduct is rather self-evident. For example, if you were “roughed-up” by a cop as he arrested you, and you’ve subsequently filed a complaint with the Special Investigations Unit, materials from their investigation into the misconduct are presumptively useable at your trial. Where the misconduct of the officer is not directly related to the investigation against you, it may nonetheless be relevant to the accused's case, in which case it should also be disclosed. Generally speaking, the more closely related your charge and the officer’s prior acts of misconduct are, the stronger your argument will be for a production order. Thus, assessing relevance will always be a contextually–framed analysis, and an order to disclose will be founded on the particular facts of your case.

Relevance and the Issue of Credibility

Unfortunately, the courts have been unwilling to issue a blanket order of disclosure based solely on an argument that if the officer-in-question intends to testify at your trial, his credibility will always be an issue, and as such, any findings of misconduct ought to be disclosed. The argument in favour of this analysis is that had it been a civilian witness who intended to testify, his past convictions would be disclosed and could be put to him during his testimony, which may ultimately affect his credibility. The court in R v. Bell, however, held the following:

"Does McNeil compel routine disclosure here and in all cases as part of first party disclosure of all materials in the possession of the Crown, including the police, relating to the disciplinary/criminal histories of investigating officers involved in any prosecution, because their credibility as witnesses is always in issue. In my view, that interpretation of McNeil casts the disclosure net too widely."

If you have a question regarding the content of this blog, or wish to seek further legal advice on a related issue, please visit www.ghobriallaw.ca.

Top Stories

Keywords: McNeil Application; R v. McNeil; Disclosure; Police Disciplinary History; Officer Disciplinary History; Disclosure of Police History; Disclosure of Police Misconduct; Disclosure of Officer History; Disclosure of Officer Misconduct; Disclosure of Officer's Disciplinary History; legal rights; criminal trial; criminal procedure; criminal proceedings;