Toronto Criminal Lawyers Blog

There are a variety of reasons an individual with a criminal record may wish to obtain a pardon. A pardon works to seal your criminal record so that it does not appear when an inquiring party does a criminal records check. Having a criminal record can affect your chances of being accepted into certain educational programs, being hired for some types of jobs, advancing along some career paths, engaging in some forms of self-employment (such as purchasing a franchise, running a daycare, or doing work on contract), and doing some types of volunteer work. Having a criminal record can also affect your ability to be bonded, custodial rights relating to children, and your ability to travel to the United States and abroad. A criminal record can also jeopardize your Canadian Immigration status. A criminal record can cause stress, and thereby may have a negative emotional and psychological impact on one’s health. A pardon serves to eliminate this source of stress.

Before you can apply to obtain a pardon, you must meet the pardon eligibility criteria: First, there are time restraints which prevent you firm applying for a pardon until a specific amount of time has passed since the date your sentence was satisfied. Every criminal conviction ends with a disposition, which is the sentence the judge orders you to serve. Generally speaking, a disposition will end with a period of probation. At the end of that period, when there is nothing outstanding for you to do based on the disposition ordered by the judge in your matter, your sentence is said to be satisfied. For example, if you  are sentenced to one year incarceration and one year probation, your sentence will be satisfied at the end of your probation; if you are sentenced to pay a fine of $10,000 your sentence will be satisfied on the date that you pay; if you are sentenced to one year incarceration, one year probation, and a $10,000 fine and you do not pay the fine until three years after the end of your probation, your sentence is satisfied on the date that you pay the fine. You then must allow a specific time period to pass from the date the sentence is satisfied, before you may apply for a pardon. The amount of time varies depending on the type of offence you were convicted of:

• Summary Offences: 3 years from the date your sentence is satisfied.

• Indictable Offences: 5 years from the date your sentence is satisfied.

It is important to note that the date your sentence is satisfied is defined in reference to the sentence as ordered by the judge who presided at your trial and does not change if you are discharged early. Thus, if you were sentenced to one year of probation, but you are discharged from probation after 8 months, your sentence is not considered satisfied until the end of the year ordered in your disposition. It is also important to note that suspensions such as Driver’s license suspensions and gun license suspensions are not included in the calculation of when your sentence is considered satisfied. Thus, you may apply for a pardon despite having such a suspension.

The second criteria of pardon eligibility, is that you have no outstanding charges before the court. If you have outstanding charges, even if they are unrelated to the conviction you are attempting to have cleared, you may not apply for a pardon. The final criterion applies to individuals with more than one conviction on their criminal record. These individuals cannot apply for a pardon from specific convictions on their record — they must apply for a pardon from all convictions. In order to do so they must meet the pardon eligibility requirements for every conviction on their record. The appropriate amount have time must have passed since their sentences was satisfied for each offence on their record before they may apply for a pardon.

If an individual meets the eligibility requirements and wishes to apply for a pardon they must go through the Pardon Application Process. Individuals can obtain a Pardon Application Guide in one of three ways:

• Online at www.npb-cnlc.gc.ca,

• By calling 1-800-874-2652 toll free and requesting a copy of the Guide, or

• By mailing a written request of the Guide to:

Ontario General Office

Pardon Application Guide request

516 O’Connor Drive

Kingston, Ontario

K7P 1N3

The Guide will contain a copy of the Pardon Application form which you should fill out submit according to the instructions included in the Guide.

Your Pardon Application will be evaluated on a number of criteria. First, the National Parole Board will confirm that you meet the eligibility criteria described aboveyou’re your record consists exclusively of summary offence convictions, a pardon will be issued if you meet the eligibility criteria. If your record includes a conviction for an indictable offence, the National Parole Board will evaluate a number of “Good Conduct Criteria” to determine whether granting a pardon is appropriate in the circumstances. (The Board will treat hybrid offences as indictable offences unless you submit proof in your application that you were convicted summarily). Your pardon request will likely be denied, if one of the following occurred within the last five years:

• You had your Driver’s License suspended

• You entered into a Peace Bond

• You were found to be drunk and disorderly in a public place

• You were convicted of a provincial or municipal offence

• You have overdue provincial fines

• You made harassing telephone calls

• The police know / suspect that you are involved with organized crime, gangs or terrorist groups

• There is one or more outstanding warrant for your arrest

• You have been under criminal investigation

• You were involved in a situation that required police intervention

If one of these grounds is alleged against you the National Parole Board will inform you that it proposes to deny your application. You are then given an opportunity to respond in writing to the allegation. If you are subsequently denied you will have to wait one year before re-applying. We strongly advise that you seek legal advice at this stage of the pardon process, if you have not already done so when preparing your Pardon Application.

The estimated processing time for a Pardon Application is 8 to 24 months. It is possible to apply for an emergency pardon — which takes six months or less — however; you must meet certain criteria which suggest that your request should be expedited. These include:

• job offer or existing job that requires a pardon (routine job hunting will usually not suffice unless you are job hunting as an unemployed professionals who must admit to a criminal record when submitting a resume)

• You have an Education Degree and are applying for a Teaching License with an indictable offences (as some license programs automatically deny teachers on this ground)

• Your school practicum requires a Pardon before placement

• You are in the process of adopting a child

• Bonding / licensing requirements

• You require a work visa to work in a foreign country

• You have been appointed as a Director to public companies or Director of a company going public

The Pardon Application Process can be complicated and we do not recommend that you apply without first obtaining some form of legal advice. Many criminal defence lawyers, including those at our offices, offer assistance with Pardon Applications.

If your pardon is granted, your criminal record will be sealed and removed from the Canadian Police Information Center (CPIC)’s records. A subsequent criminal records search will reveal that you have no criminal record. According to the Criminal Records Act, your pardon can only be “unsealed” by the Solicitor General if he believes that doing so is in “the interest of the administration of justice” or “for a purpose related to the safety or security of Canada or any State allied or associated with Canada”. Thus, your pardon will only be unsealed in the unlikely case that doing so is a matter of national security. However, if you were convicted of a crime involving “vulnerable persons” (these are physical or sexual offences aimed at children, the elderly, the mentally or physically disabled or anyone else in a dependency relationship with the offender), that conviction will still appear on a “Vulnerable Person’s Search”. It will, however, be noted that you have received a pardon for the offence.

At Kostman and Pyzer, Barristers, we can assist you when you become eligible for a Pardon. Call us, at 416-658-1818.

A recent decision by the Ontario Court of Appeal, Tadros v. Peel (Police Service), 2009 ONCA 442 [“Tadros”] makes it clear that when an individual consents to a criminal history check, the police are at liberty to disclose information about charges that have been withdrawn by the Crown. This decision is of great significance to individuals in the Greater Toronto Area who have been charged with a criminal offence. It is not uncommon for the Crown to offer to withdraw the charges against an accused person if the accused enters into a peace bond which requires that they keep the peace and be of good behaviour. One of the benefits of entering a peace bond and having the charges withdrawn is that the accused avoids a criminal record. Following Tadros records of withdrawn charges may be kept by the police and disclosed as part of a background check as long as the police obtain the sufficient consent. Tadros affects not only those who are currently facing criminal charges, but also individuals who have been accused of crimes in the past. As criminal defence lawyers, we believe that it is crucially important that information about this decision is freely available to all individuals who have a criminal history. We strongly encourage any individual who has ever been accused a crime to read the following brief summary decision in Tadros and the effect it could have on your future job prospects.

Tadros v. Peel (Police Services)

In Tadros the defendant, Magdy Taldros, was accused of four counts of sexual assault and four counts of sexual exploitation related to allegations made by youth residents of a group home he operated in the Peel region. A year and a half later, the charges were withdrawn by the Crown. Mr. Tadros agreed to enter into a peace bond to keep the peace and be of good behaviour, but maintained that he did not commit the crimes alleged against him.

Years later, when applying for a job, Mr. Tadros signed Toronto Police Services authorization forms requesting a “Criminal Records Search” and, because his job involved working with young people, a “Vulnerable Persons Search”. The Criminal Records Search did not disclose any information about the charges which were withdrawn against him because withdrawn charges do not appear as a criminal record. However, the Vulnerable Persons Search did disclose the eight withdrawn charges. The court found as a fact that this information led several employers to deny Mr. Tadros’ application for employment. Despite the effect the disclosure had on Mr. Tadros, the Ontario Court of Appeal found that information pertaining to withdrawn charges could be disclosed if the specific individual who was charged consents to the disclosure. In coming to their finding, the Court of Appeal relied on s. 32(b) of the Municipal Freedom of Information and Protection of Privacy Act which states that a Chief of Police is entitled to disclose personal information with the specific consent of the affected individual. Having found that information about withdrawn charges is properly considered “personal information” and that Mr. Tadros gave proper consent to the disclosure of that information, the Court of Appeal was bound by s. 32(b) to find that the disclosure was legal.

“Vulnerable Persons”

The decision is Tadros primarily affects individuals who are applying for jobs which involve interacting with “vulnerable persons”. For legal purposes, the category of “vulnerable persons” generally includes those who, because of age or disability, are in positions of dependence that make them vulnerable to abuse by individuals in positions of authority. Generally, the term refers to children but it can also refer to individuals with some forms of mental or physical disability, the elderly, and the infirm. Crimes against vulnerable persons generally take the form of sexual or physical abuse.

Generally, when an individual applies for a job, his or her employer will request a Criminal Records Search. However, when an individual applies for a job working with vulnerable persons, the employer may request a Vulnerable Persons Search. While a Criminal Records Search only discloses an individual’s criminal record, a Vulnerable Persons Search goes further by disclosing any encounter between the individual in question and the police which may have bearing on his or her ability to interact safely with vulnerable persons.

Consent

One of the major issues stressed by the Court of Appeal in Tadros is that information which does not appear on an individual’s criminal record, such as information about withdrawn charges, can only be revealed with proper consent of the affected person. Though this type of information can only be revealed with consent, often an individual applying for a job is required to consent to disclosure of that information in order to be considered for the position. This means that if you have withdrawn charges for an offence against a vulnerable person and you wish to continue to work with vulnerable persons you may find yourself trapped in a situation where you must either consent to a Vulnerable Persons Search and disclose the withdrawn charges or look for work in a different field.

This decision does not only apply in the context of a Vulnerable Persons Search. The main finding in Tadros is much more general. Tadros stands for the proposition that the police can disclose information about charges where no conviction was found (i.e., charges that do not appear on the individual’s criminal record) so long as the affected individual consents to that disclosure. A Vulnerable Persons Search is simply the most common example of a situation where an individual may be asked to consent to additional police disclosure in the context of applying for a job. It is conceivable that information about withdrawn charges in other areas could be requested by employers, in which case individuals would find themselves in a position where they are asked to give the police permission to disclose information about other types of withdrawn charges.

Conclusion

As criminal defence lawyers, we at Kostman & Pyzer, Barristers find the decision in Tadros deeply troubling. One of the most fundamental tenants of our criminal justice system is that an individual who is accused of a criminal offence is innocent until proven guilty on the evidence before the court. When charges are withdrawn this usually means that the Crown does not have a reasonable prospect of convicting the accused on the evidence. These individuals should not have to bear the burden of unsubstantiated charges for the rest of their lives. Unfortunately, the ruling in Tadros means that if an individual makes an entirely fictitious and vexatious claim against you and you are charged on the basis of that claim, you could end up encountering problems in your future employment endeavors even if the charges against you are withdrawn. We can only hope that the Supreme Court of Canada or Parliament will choose to reverse the decision in Tadros at some time in the future. Until then, we thought it important to let all our readers know about the decision and the negative effect it could have on the everyday lives of individuals living in the Greater Toronto Area.

The PARS Program — which stands for Partner Assault Response Services — is an important component of Ontario’s Domestic Violence prosecution strategy. It consists of a specialized counseling and educational service for those individuals who are found guilty of a domestic violence-related offence. Upon a finding of guilt, the individual will be referred to PARS either by the Domestic Violence co-ordinator or by the Probation and Parole office.

The PARS Program lasts sixteen weeks in total. During those sixteen weeks, participants learn about appropriate behaviour towards their partner and non-violent ways to deal with their anger. Participants are expected to attend the program for one hour each week. The program is available in both English and French, and translator services can be provided for most other languages.

In order to be eligible for the program, the offender must be at least 18 years old, must be referred by a courts or probation office and must agree to participate in the program. Participation in the PARS program is voluntary. However, Toronto courts will often give individuals charged with an offence an incentive to participate in PARS, by offering a reduced sentence or probation if the accused individual agrees to enter the program. In most cases, before an individual is eligible for PARS there must be a finding of guilt against them. In some cases, an individual may participate in the program on the understanding that upon successful completion, they will receive a Peace Bond. As criminal defence lawyers, we always strive to avoid a finding of guilt for our clients and urge them only to enter the PARS program if they understand that although an absolute or conditional discharge does not constitute a criminal record, it is a finding of guilt and will show up as such on CPIC the police database.

Those who live in the Toronto Area and want to learn more about the PARS program can attend an information session on the PARS Domestic Assault Program held at the 1000 Finch courthouse on Tuesdays at 1:00 p.m. in courtroom 303. You may also call 1-888-579-2888 (outside Greater Toronto Area) or 416-314-2447 (inside Greater Toronto Area) to get more information and find the PARS location nearest you.

All of the offences in the Criminal Code of Canada can be classified as summary, indictable or hybrid. The classification of an offence generally tells us how serious the offence is and what types of punishments are available to the Crown. As criminal defence lawyers operating in the city of Toronto we routinely deal with all three types of offences. If you are accused of a crime, it is useful to understand the differences between these three categories of offences to better understand the charge against you.

Summary Offences

Summary offences are minor offences which, by law, carry relatively lenient penalties. According to section 787 of the Criminal Code of Canada, summary conviction offences can be punished by a maximum of six months imprisonment, a fine of $2000, or both. Some examples of summary offences are causing a disturbance; making harassing telephone calls, taking a motor vehicle without the owner’s consent, trespassing, and communicating to obtain the services of a prostitute.

Indictable Offences

Indictable offences are considered more serious than summary offences. Indictable offences can carry serious fines and jail time up to life imprisonment.  There are three types of indictable offences.

• Section 553 Offences These are less serious indictable offences.  They are always heard in provincial court by a judge alone. In Toronto, provincial courts include Old City Hall, 2201 Finch Street West, 1000 Finch Street West and College Park. These offences carry a maximum penalty of 2 years imprisonment. Some examples are breach of recognizance, theft under $5000, failure to comply with a probation order, etc.
• Section 561 Offences These are moderately serious offences. If you are charged with a s. 561 offence, you have the right to choose whether the case will be heard in provincial or superior court and whether or not it will be heard by a jury. In Toronto, Superior Court is located at 361 University Avenue. Section 561 offences carry a maximum penalty of 14 years, although sentences are more often in the 5 to 10 year range. Some examples are sexual assault with a weapon, fraud over $5000, theft over $5000, arson, and robbery.
• Section 469 Offences These are the most serious types of offences in the criminal justice system. They are always tried in Superior Court by a judge and jury. Moreover, they carry a maximum penalty of life in prison. Some examples are: first degree murder, second degree murder, manslaughter, hijacking, kidnapping, and hostage taking.

Hybrid Offences

Many offences in the criminal code may be prosecuted as a summary offence or as an indictable offence. These are known as hybrid offences. If you are charged with a hybrid offence, at some point in the pre-trial process the Crown will be called upon to decide whether they are going to proceed summarily or by indictment. This decision is referred to as a “Crown Election”. If the Crown chooses to elect summarily, the offence will be treated as a summary offence for all practical purposes (and vice versa if the Crown chooses to proceed by indictment). Some examples of hybrid offences are sexual assault, sexual interference, and simple assault. Although these offences are called hybrid offences at the beginning of the trial process, at some point the Crown will choose to proceed summarily or by indictment. Thus, by the time these charges are dealt with (by plea, trial, or the like) they will always be designated as either summary or indictable and treated as such. The main difference between an election to proceed summarily and an election to proceed by indictment is that more severe penalties attach to indictable offences.

Procedural Differences

There are some procedural differences between how the criminal justice system proceeds with summary offences and how it proceeds with indictable offences, other than the different penalties each type carries.

• Arrest the police can arrest an individual for a summary offence without a warrant. However, if they arrest an individual for an indictable offence, the police require a warrant signed by a judge.
• Grounds for Arrest the police must observe the individual committing the offence to arrest for a summary offence. To arrest for an indictable offence, the police need only “reasonable and probable grounds” to believe that the individual they are arresting committed an indictable offence.
• Charge The accused must be charged with a summary offence within 6 months of the date the offence was allegedly committed.
  There is no time limit on when an individual may be charged with an indictable offence and individuals are frequently charged years after the offence was actually committed. This is often the case with sexual interference charges, as victims tend to come forward when they are more able to understand the nature of what happened to them. There is one exception; the Criminal Code provides that an individual cannot be charged with treason once three years have passed since the date of the alleged offence.
• Fingerprints An individual charged with a summary offence does not have to provide the police with fingerprints. If you are charged with an indictable offence, you will have to provide a copy of your fingerprints to the police.
• Trial Those charged with a summary offence who proceed to trial will be tried by a judge alone and cannot choose to be tried by judge and jury. The charge will likely be heard in a provincial court.
  An individual charged with an indictable offence may elect to be tried by a judge alone in a provincial court, by judge alone in a superior court, or by judge and jury in a superior court. There are some indictable offences to which the right to be tried by jury does not attach. These include: Theft Under $5000, Mischief Under $5000 and Fraud Under $5000.
• Pardons An individual convicted of a summary offence may apply for a pardon after 3 years from the expiry of their sentence, whereas those convicted of an indictable offence must wait 5 years before applying for a pardon.

As criminal defence lawyers, we have been appearing in Toronto courts and courts in the Greater Toronto Area for so long that proper court etiquette has become second nature to us. However, many of our clients are appearing in court for the first time and are understandably nervous about the process. Criminal defence lawyers are often asked a lot of questions about court protocol by accused individuals as they prepare to appear in court. Behaviour that passes as polite in ordinary life is often considered inappropriate in the courtroom. It is best to think of the courtroom as a formal environment rather like a classroom, Church, Temple, or Mosque, with its own rules of etiquette. The following list of rules is like an orientation guide to courtroom etiquette which can help make that first day in court much less intimidating.

1) Show Up

When you are arrested, the police will provide you with a promise to appear notice. Your promise to appear will list the courthouse, courtroom, date and time of your first expected court appearance. It is very important that you attend your first court date. Judges in and around Toronto prefer to avoid unnecessary delay and look favorably upon defendants who show initiative in expediting the legal process from court appearance to court appearance. More importantly, if neither you nor your lawyer show up for your first appearance, the judge will issue a warrant for your arrest on a charge of “failure to appear in court” and you will likely be arrested.

2) Arrive On Time (But Be Prepared To Wait)

The time stated on your promise to appear indicates the time that the court opens to hear your matter and the matters of other individuals scheduled during the same block of time as you. When you arrive at the courtroom there will be a list (usually hanging outside the door of the courtroom) called a “docket”. The docket will list all of the people that have been told to appear in that courtroom at that time on that day. When court begins the Crown Attorney will introduce themselves and will begin to read names off of the docket one-by-one. There is no way to know for certain when your name will be called so it is important to arrive on time but be prepared to wait for your name to be called.

3) Find a Lawyer As Soon As Possible

The first step to proceeding with your matter is to “retain counsel” — which is a formal way of saying “hire a lawyer”. This is the first and most important obligation on you, the defendant, throughout the trial process. As said before, the court looks favourably on individuals who show initiative in proceeding with their matters. The best way to show initiative from the get-go is to retain counsel as soon as possible. Generally, it will impress a judge if you have retained counsel by your first or second appearance. If you delay too much in retaining counsel, this may prejudice your case down the road.

4) Sit in the Public Benches

Every courtroom will have a number of benches at the back which are open for public seating. There is also special seating at the front reserved for lawyers and officers of the court. Usually there will be a short wooden barrier or some other sort of divider between the public seating and the reserved seating. Be sure to sit in the public seating and avoid entering the front area of the courtroom until your name is called.  Sometimes there is not enough room in the public benches for all the people appearing in court that day. In that case, it is best to wait just outside the doors to the courtroom and you will be paged over the intercom or an officer will call you in when it is your turn. If there is room in the courtroom it is important to sit inside. If there is room inside, the court will assume that you are either sitting in the courtroom or you have chosen not to appear in court that day. The clerk of the court may not go out of their way to call your name, so if you do not hear your name called, a warrant may be issued for your arrest on a “failure to appear in court” charge.

5) Stand Up

When the judge or justice of the peace presiding over the court that day enters or exits the courtroom, the clerk (who sits right in front of the judge) will say “everybody please rise” — when this happens it is polite to stand up until the clerk tells everyone to “please be seated”.

6) Turn Off Your Cell Phone

When court begins, the clerk will usually remind everyone to turn off their cell phones — make sure that you do. Not only is it disrespectful if your cell phone to ring in court, but many courtrooms have special recording devices and cell phones can interfere with their ability to record the proceedings. That’s why it is important to turn your phone completely off; don’t just switch it to silent mode. Sometimes, if the Justice of the Peace is in an anxious mood, they may direct a court officer to confiscate a cell phone that has caused a distraction in the court.

7) Be Quiet

It is important to remain as quiet as possible while you are waiting for your name to be called. Make sure that you pay attention and listen for your name so that you do not miss your appearance.

Be Polite and Avoid Arguing

When your name is called you will go stand at the front and address the court. It is very important to be polite and avoid arguing with the judge or justice of the peace. This is not the time to challenge the accusation or express your defence.

9) Use Proper Vocabulary

It is important to be polite and respectful when you address the court. It is also helpful — though not necessary — to use and understand some common legal language.

The proceeding will be presided over by either a judge or justice of the peace. To determine which you are appearing before look at his or her sash — if it’s red you are appearing before a judge and should address him/her as “Your Honour”; if it’s green you are appearing before a justice of the peace and should address him/her as “Your Worship”. It is likely that on a first appearance at a Toronto court house you will appear before a justice of the peace.

Generally speaking, if you are appearing in court for the first time, you will want to put the matter on hold for a couple of weeks until you are able to retain a lawyer. In legal vocabulary, putting a matter on hold so that you can return to court to address it in the future is called “adjourning the matter” or “remanding the matter”. When you address the court you will ask to adjourn or remand the matter to a specific date to give you an opportunity to “retain counsel”. This is also known as “holding the matter over” to a specific date. You probably want to aim for a date about a month after the day of your first appearance. This should give you an adequate opportunity to find a lawyer before you return to court. Usually on a first appearance you will have no problem remanding the matter in order to find a lawyer. (For tips on how to choose a lawyer see our blog “How Do I Choose a Lawyer?”)

If the court asks you any questions or brings anything up that you do not understand you should ask to have an opportunity to speak with duty counsel. “Duty counsel” is a legal aid lawyer who is on duty to assist individuals who do not have counsel. Most Toronto courthouses will have a duty counsel office with many lawyers on duty and, in addition, most Toronto courtrooms will have their own duty counsel lawyer present who may be able to speak with you. You can ask the court to “hold the matter down” while you speak to duty counsel. This means that the court will go back to calling names off the docket while you speak with duty counsel and when you return they will recall your name and finish addressing your matter.

10) Dress Appropriately

The dress code in court is somewhat formal. You should attend court wearing something you would feel comfortable wearing to a job interview, to work in an office, or to a religious service in a church, temple, mosque or the like. People do attend remand court in jeans and it is generally acceptable to do so, though it is preferable to wear dress pants or a skirt. When it comes to your trial you should aim to wear a suit or something equally formal if possible.

It is important to look respectable in court — both so that you will be taken seriously and to show proper respect to the court. For women this means avoiding short skirts (knee-length or longer is preferable), low cut cleavage, spaghetti strap tops, and bare mid-drifts. Men should be careful to avoid overly baggy jeans, hooded sweatshirts, and tank tops. It is not appropriate to wear a baseball cap or any other kind of hat in the courtroom (unless the hat is worn for religious purposes). You will always be appropriate in a suit, dress pants and a dress shirt, a conservative dress, khakis and a polo shirt, a long skirt and shirt with sleeves, or something similar. The court system in Toronto is quite conservative, and though you may see people in all sorts of dress when you appear, you will make the best impression if you dress appropriately.