Toronto Criminal Lawyers Blog

Usually a trial ends with a finding of either “guilty” or “not guilty”. However, sometimes the court will find an individual “not guilty by reason of mental disorder”. These individuals actually committed the acts they are accused of, but because of some sort of mental disorder are unable of possessing the “guilty mind” the law requires to find an individual guilty. Thus, they are deemed Not Criminally Responsible for their actions, or “NCR”.

Not every person with a mental illness will be able to raise a successful NCR defence. In fact, NCR defences are only available to individuals who have certain forms of mental illness. The requirements an individual must meet to raise a successful NCR defence are outlined in the Criminal Code of Canada.

According to the Criminal Code, every individual is presumed to be sane under the law, unless proven otherwise. In order to raise a successful NCR defence, one party to the trial must rebut that assumption by showing that the individual’s mental illness has all of the components required by statute to qualify the individual as NCR. The first requirement is the existence of a mental disorder. The second requirement is incapacity on one of two grounds as a result of that disorder.

The meaning of the phrase “existence of a mental disorder” has received a lot of attention from judges and legal scholars. A mental disorder is traditionally defined as a “disease of the mind”. According to the Supreme Court of Canada in the 1980 case Cooper v. The Queen, a “disease of the mind” is any illness, disorder or abnormal condition that impairs the human mind and its functioning. Thus, a disease of the mind is any medically recognized disorder, but does not include self-induced mental states (through drugs or alcohol) or transitory mental states (such as extreme anger which passes).

However, just because an individual possesses a “disease of the mind” does not mean they will necessarily be able to raise a successful NCR defence. In order for the defence to be successful, the court must find that one of two kinds of incapacity defined in the Criminal Code occurred as a result of the disorder and were present at the time of the event in question. The first form of incapacity is an inability to appreciate the nature and quality of the act. In order to understand the nature and quality of an act, an individual must be able to know what he or she is doing and understand the natural consequences of the act. It is not sufficient that the accused does not understand the legal consequences of the act or has an inappropriate emotional reaction to the event. Thus, for example, if the accused was to shoot someone, he could raise a successful defence of NCR if he did not know he was shooting a person or was unable to appreciate that shooting a person could result in that person’s death. However, if the accused simply did not believe that he could be arrested / punished for shooting another person or if he did not feel any guilt or remorse for shooting the person, he would not have a defence of NCR.

The second form of incapacity is that the accused is unable to appreciate that an act is morally wrong. According to the Supreme Court in R. v. Oomen, in order to be considered sane and therefore criminally responsible, the accused must have the capacity to know that the act is wrong according to the ordinary moral standards of a reasonable member of society. In other words, if the accused lacks the basic capacity to understand that society would consider their actions morally wrong, the NCR defence may be available to him. Thus, an individual diagnosed as a psychopath, who does not believe that murder is morally wrong but has the capacity to understand that society believes that murder is morally wrong would not be eligible for this defence. On the other hand, an individual diagnosed with schizophrenia who believes that the individual they killed is the devil and god instructed them to kill that devil, may be able to benefit from the NCR defence, because they believe that what they are doing is actually morally right.

When an individual is found to be Not Criminally Responsible and therefore not guilty by reason of mental disorder they are not necessarily released back into the general population. A Provincial Review Board comprised of experts in the area will review the verdict and determine whether the individual should be put into the NCR stream. Upon determining that an individual is NCR, the Board will decide what action should be taken in response to the individual’s actions. Since the individual is not considered morally to blame for their actions, the Board will try to make the least intrusive recommendation possible.  The Board may choose to grant an absolute discharge, a conditional discharge (psychiatric releases, not sentence dispositions), or may decide to detain the individual in a psychiatric hospital. If the individual is granted an absolute discharge they are free to go; However, all other dispositions require a mandatory review every 12 months by the Board. Individuals detained in psychiatric hospitals are given indeterminate sentences to be reviewed on a regular basis by the Board.

There are several pros and cons to an NCR defence. On one hand, individuals who are truly mentally ill are directed into institutions designed to deal with their medical conditions instead of being placed into the regular jail population. On the other hand, psychiatric hospitals are often overcrowded, under staffed, and unable to provide the proper treatment NCR individuals would benefit from in the long run. The NCR defence can be raised by the by a criminal defence lawyer, however it can also be raised by the Crown or by the court (i.e., by the judge), if any one of them believe the accused individual should be put in the NCR stream. Defence lawyers therefore can be called upon to argue either side of the NCR defence depending on what is in the best interest of their client.

The Supreme Court of Canada made headlines earlier this year when they released their decision in R. v. Patrick (“Patrick”) which confirmed, for the first time ever, that the police can legally search a suspect’s garbage without a warrant.

Section 8 of the Charter guarantees that every Canadian is free from unreasonable search or seizure. This means that a government agency cannot search an individual’s personal property unless that search is “reasonable”. In most circumstances, before the police search an individual’s property (their home, car, office, or person) they will obtain a warrant. A warrant is like a permission slip that authorizes the search of a place or thing. Without a warrant, it is generally against Canadian law for the police to search any individual’s person (unless incidental to arrest) or property.

However, in Patrick, the Supreme Court of Canada (“SCC”) ruled that the police may legally search an individual’s garbage without a warrant if source of the garbage puts it out to await collection.

The Calgary Police Department suspected Mr. Patrick of producing the drug ecstasy in his home; however, they did not have enough evidence to secure a warrant to search Mr. Patrick’s property. Instead, the police rifled through his garbage on several occasions until they discovered enough incriminating pieces of evidence to obtain a search warrant. They then forcibly entered Mr. Patrick’s home where they found evidence of an ecstasy lab and over 2,500 pills of ecstasy.

At trial, Patrick argued that his constitutional right to be free from unreasonable search and seizure had been violated by the warrantless search of his garbage. The SCC unanimously agreed that his rights had not been violated. The majority stated that when Mr. Patrick placed his garbage by the curb to await collection he had effectively abandoned all reasonable expectation of privacy in the contents of his garbage.

There are several problems with the decision in Patrick.

The first is that the garbage awaiting collection was still situated on Mr. Patrick’s property. Ostensibly, Mr. Patrick has control over who enters and exits his private property. While garbage collectors may have Mr. Patrick’s implicit permission to reach over the property line and collect the garbage he had put out for them, it is safe to say that Mr. Patrick could not reasonably have expected police officers to trespass on his property to obtain the garbage. On the contrary, it seems much more reasonable for Mr. Patrick to assume that police officers would respect the law and refrain from trespassing on private property. In fact, in Calgary, where Mr. Patrick lived, it was against municipal by-laws to scavenge through another individual’s trash. However, the SCC were not convinced that this by-law was sufficient to create a reasonable expectation on the part of a home-owner that the police would not rifle through their garbage — or in other words, the fact that there was a by-law in place does not translate into a reasonable belief that the police would respect that by-law.

Most individuals would be shocked to think that nosy neighbors, reporters, private investigators, ex-spouses, and any other member of the public may legally rifle through an individual’s trash as it awaits collection. However, according to the SCC in Patrick garbage awaiting collection at the curb has been abandoned and an individual has no privacy interest in it. This means that any member of the public would be within their rights to snoop through your garbage. Most Canadians would likely be shocked to know that current Canadian law allows this type of behaviour. Though the average Canadian does not object to their trash being collected by garbage collectors or rifled through by bottle-collectors and the like, these activities are less objectionable because they tend to preserve the home-owner’s anonymity. It seems counterintuitive that police officers and private individuals can legally cross the property line to seize trash from an individual’s property in order obtain information about their private and personal habits against a homeowner’s wishes and without a warrant.
Another major problem with the SCC’s decision in Patrick is that it seems to directly contradict their earlier decision in Stillman. In Stillman, Mr. Stillman was accused of murdering a young girl and brought into RCMP headquarters for questioning. Mr. Stillman was seventeen years old and his lawyer provided the RCMP with a fax instructing them that Stillman was not, under any circumstances, to provide any bodily samples to the police. Nonetheless, the RCMP took several samples from him including bodily fluid samples taken from discarded Kleenex he threw out in the bathroom. On the abandonment argument, the SCC concluded that while in custody, providing bodily samples was “simply the inevitable consequence of the normal functioning of the human body”. They conclude that a person in custody cannot reasonably be said to have abandoned the bodily sample because the accused person has no choice other than to discard the samples in proximity of the police. It would be virtually impossible for an accused person in custody to “destroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminating evidence on his person at all times in order to prevent the police from ‘retrieving’ this ‘potentially useful waste’”. Thus, the SCC concluded that Mr. Stillman retained a privacy interest in his bodily samples even after the Kleenex was thrown out.
On that logic, individuals should retain a privacy interest in the biographical information contained in their garbage after the garbage itself is discarded. As was the case with Mr. Stillman, it would be virtually impossible for an individual out of custody to retain control over all trash to keep from providing possibly incriminating evidence to the police. Individuals living in the city of Toronto and the Greater Toronto Area are prohibited by law from burning their garbage. In Calgary (where Mr. Patrick lived), Toronto and the Greater Toronto Area, it is illegal to dispose of household garbage in any way other than by surrendering it to municipal trash collection. It seems that out-of-custody suspects are as powerless as in-custody suspects when it comes to trying to dispose of garbage in a private manner. According to the principle in Stillman, individuals who put garbage outside for collection should retain some sort of privacy interest in their garbage. However, Patrick tells us that this is not the case.
The major concern for both criminal defence lawyers and the general public post-Patrick is that police officers will be able to search through garbage as it awaits collection in order to obtain DNA, fingerprints, and other biographical information. The SCC in Patrick recognized the vast amount of personal information contained in an individual’s garbage. They acknowledge that “[r]esidential waste includes an enormous amount of personal information about what is going on in our homes, including a lot of DNA on household tissues, highly personal records (e.g., love letters, overdue bills and tax returns) and hidden vices (pill bottles, syringes, sexual paraphernalia, etc.)…a garbage bag may more accurately be described as a bag of “information”, and its contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle”. Yet, despite this observation, the SCC rejected the view that household garbage should be considered private until it becomes anonymous, saying it was “too extravagant to contemplate” that an individual should have a privacy interest in their garbage until “the last unpaid bill rots into dust”.
Is it really so far-fetched to suggest that an individual has a privacy interest in their garbage until it becomes anonymous? One of the reasons we throw things out is to have them mixed with other refuse until they become so mixed they can no longer reasonably be connected back to us. Many people go so far as to shred important documents before disposing of them so as to hasten the intermixing process and achieve anonymity. It seems that individuals at least believe that they have a privacy interest in their garbage as it awaits pick-up since this is one of the few occasions where the garbage can properly be identified as belonging to them.
The best course of action for those who are concerned about the decision in Patrick is to store garbage in a locked receptacle, far within the property line until pick-up to clearly indicate your intention to keep the contents of your garbage private. In Patrick the majority notes that “until the garbage is placed at or within reach of the lot line, the householder retains an element of control over its disposition and cannot be said to have unequivocally abandoned it, particularly if it is placed on a porch or in a garage or within the immediate vicinity of the dwelling”. Keep your garbage close to your home and only put it out at the time of collection and you may retain some form of privacy interest in any personal information contained therein.

As criminal defence lawyers practicing in a multicultural city like Toronto, we are often asked what effect a criminal conviction may have on a client’s immigration status. If you are a foreign national or permanent resident residing in Canada and you are convicted of a criminal offence, that conviction could have serious repercussions on your ability to legally remain in Canada.

If you a foreign national or permanent resident of Canada and you are charged with a criminal offence under the Criminal Code of Canada, you may be declared inadmissible due to criminality. There are three categories of criminal behaviour that result in this type of inadmissibility.

¥ Serious Criminality  If you are convicted of an indictable offence which carries a minimum sentence of ten years or you are convicted of an indictable offence and sentenced to six months or more in prison, you may be deemed inadmissible due to serious criminality.

¥ Less Serious Criminality  If you are convicted of a summary offence which could have been prosecuted as an indictable offence and as such carries a prison sentence of no more than ten years, you may be deemed inadmissible due to less serious criminality.

¥ Minor Criminality  If you are convicted of two or more summary offences which do not arise out of a single event you may be deemed inadmissible due to minor criminality.

There are exceptions to the laws governing inadmissibility due to criminality. For example, if you are pardoned under the Criminal Records Act you cannot be deemed inadmissible due to serious criminality. The bottom line is that following a conviction for an indictable offence, or a second conviction for a summary offence, you may face immigration proceedings.

If you are a foreign national residing in Canada and find yourself in one of the three situations listed above, you may be declared inadmissible. Following such a declaration, you could be denied permanent resident status and/or issued a removal order. If you are a foreign national and you have already been convicted of a criminal offence, you should contact a Toronto immigration lawyer for more information regarding your immigration status.

If you are a permanent resident of Canada and you find yourself in one of the above situations you may be declared inadmissible due to criminality. If you are declared inadmissible, you could be denied citizenship and/or issued a deportation order. If you are a permanent resident and you have already been convicted of a criminal offence, you should contact a Toronto immigration lawyer for more information regarding your immigration status.

If you are a Canadian foreign national or permanent resident FACING CRIMINAL CHARGES, the best way to ensure you remain in Canada is to avoid a criminal conviction. If you are in this situation, you should contact one of the criminal defence attorneys at Kostman and Pyzer, Barristers, as soon as possible by calling 416-658-1818.

Kostman & Pyzer, Barristers, Toronto lawyer Jonathan Pyzer made news recently at the sentencing hearing of a young Toronto man convicted of violently sexually assaulting a woman he met in a Toronto night club. Mr. Pyzer, who represented the accused at the sentencing hearing, impressed Justice Hamilton of the Superior Court of Justice with his thoughtful approach to his sentencing submissions.

Mr. Pyzer suggested to Justice Hamilton that a sentence at the lower range of the sentencing spectrum would be appropriate given the nature of the offence and his client’s strong prospects for rehabilitation. Justice Hamilton was impressed by Mr. Pyzer’s astute ability to reconcile the disparate aspects of the case.

The Toronto Sun included an article on the case which commented on Mr. Pyzer’s role in achieving a fair sentence for the accused. The portion of Justice Hamilton’s decision where he refers to Mr. Pyzer is quoted in the Sun. “I don’t relish sending anyone to jail,” Justice Hamilton remarked, “I found Jonathan Pyzer to be refreshing…and I agree with his submission”. Justice Hamilton followed Mr. Pyzer’s recommendation, securing the accused the lowest possible sentence in the circumstances.

When an individual is arrested, the police will take photographs of the accused and obtain copies of his or her fingerprints to keep on file. In many situations, individuals are able to request that the photographs and fingerprints are destroyed following resolution of their charges. If your charges proceed to trial and you are found guilty you will not be able to have this information destroyed. However, if the charges are withdrawn or resolved by way of a peace bond, it is possible to have the information destroyed. Where an individual receives an absolute or conditional discharge, the records should be sealed or destroyed after a waiting period.

If you obtain one of the resolutions listed above, the police will not automatically destroy your information. In order to have your photographs and fingerprints destroyed you must fill out and submit a copy of the “Fingerprint and Photograph Destruction – Application Form” to Toronto Police Services. You may obtain a copy of the form by visiting www.torontopolice.on.ca. The form will ask you to provide the following information:

• Your name

• Your name at the time of your arrest (Only fill this out if your name has changed, either through marriage or a legal name change. If your name has not changed you can write “same as above”)

• Your current address,

• Your date of birth,

• The charges against you (for example, “Assault” or “Fraud Under $5000)

• How your matter was resolved (for example, “I was granted an absolute discharge”), and

• The date of completion of your matter. The date of completion is the last day you appeared in court on the matter. You can get that information from your criminal defence lawyer or from the Information counter at the courthouse you attended.

Depending on how the charge against you was resolved, there are different waiting periods which must be exhausted before you can submit an application to have your photographs and fingerprints destroyed.

• Charges Withdrawn → If the charges against you are withdrawn or your charges are withdrawn following your participation in the diversion program, you must wait six months before submitting an application to have your information destroyed.

• Peace Bond → If your charges are resolved by way of a peace bond, you must wait until the peace bond has expired, and then six months later, you may submit an application to have your information destroyed.

• Absolute Discharge → If you are granted an absolute discharge, you must wait one year from the date of the discharge before you can submit an application to have your information destroyed.

• Conditional Discharge → If you are granted a conditional discharge, you must wait three years from the end of the probationary period before you may submit an application to have your information destroyed. Thus, if you receive a conditional discharge on August 1, 2009 with two years of probation, you must wait three years from August 1, 2011, before you may apply to have your information destroyed.

Once the appropriate waiting period has ended, you must complete the form and submit it to the Criminal Records division of Toronto Police Services.

You may submit it electronically by email to: criminalrecords@torontopolice.on.ca.

Or, you may submit it by regular mail to:

40 College Street,

Toronto, Ontario,

M5G 2J3

Attn: Criminal Records.

Or, you may submit it by fax to 416-808-8202.

Receiving one of the resolutions listed above ensures that you may request to have your photographs and fingerprints destroyed by police services but does not ensure that your request will be granted. The police are at liberty to refuse a request based on the nature of the incident including the charge you were facing and the disposition you received. Moreover, if you have been fingerprinted and photographed more than once, Police Services will not approve your application.

Having your fingerprints and photographs destroyed can be a slow process because at any given time the Criminal Records office is dealing with an average 3000 requests. It can take up to 9 months for Police Services to review your application. Around six months from the day your application is reviewed you will be notified whether the police intend to destroy your information. If that is the case, they will notify you at that time that they have commenced the destruction process. About six months later, you will receive a notification confirming that your photographs and fingerprints have been destroyed. Some police forces invite the individual to attend the destruction of the records. However, ordinarily one cannot be present during the process to confirm that your information has been destroyed. However, it is police protocol to destroy this information and it can never be used against you in a court of law, to obtain a warrant, or in the investigation of a future crime.

At the criminal law offices of Kostman & Pyzer, Barristers, we will take care of all applications to have your photographs and fingerprints destroyed as part of our gross fee (also known as a “retainer”). We have extensive experience dealing with Toronto Police Services in matters such as these. This service allows you to rest assured that your application will be made at the appropriate juncture and that these records will not prejudice you in the future.