Toronto Criminal Lawyers Blog

One of the first questions a client asks whcn charged with Domestic Assault is if there is any way that they could “get” a Peace Bond. Of course, in most  cases of domestic assault the Peace Bond is a happy ending. The charge is withdrawn. The accused avoids a criminal record. Life returns to normal. In some cases the parties have reconciled. Often, the relationships that gave rise to the allegations, cannot survive the test of bail orders restricting contact and the fact that the complainant made the accusation to the police.

The reality in the present criminal justice system is that Peace Bonds are very hard to obtain in the context of a domestic assault allegation. In some jurisdictions, it is almost impossible to obtain a Peace Bond prior to a trial date. On the trial date, where the prosecutor is of the view that the evidence in support of the allegation is not strong enough for a Court to convict, the client may be offered a Peace Bond. The nastier the allegation, the more likely that the prosecutor is going to let the Court make the call rather that be critized later if the Peace Bond creates a controversy.

Generally speaking, given the current political landscape of the offence of Domestic Assault, a Peace Bond is only available in the most minor cases. Threats of violence without any violence, or history of violence, may qualify,. This is  especially true if the allegation is of a he said she said nature, and unsupported by corroborative evidence. In these cases, the prosecution is aware of the fact that a conviction is unlikely.

A Peace Bond may also be available if the nonconsensual touching is viewed as very minor, and there is no history of violence between the parties. A push. Sometimes a slap. The fact that the accused has some indication of bruising can also be a factor which may influence a prosecutor to exercise their discretion to agree to a Peace Bond. The accused’s bruises would advance his defence that the complainant was the aggressor and he was acting in self-defence.

Most courthouses in the Greater Toronto area have one or two domestic assault court days wherein those individuals charged with domestic assault related offences, appear. In the current prevailing politic individuals charged with domestic assaul are generally offered a quick exit from the justice system. Where there is no history of domestic violence,and so long as there is no significant injury to the complainant, the average accused person is offered a conditional discharge (a guilty plea which is not technically a criminal record). The bail is varied to allow the parties to reconcile (with the complainant’s written consent). After the person completes the four month one night per week Partner Assault Response Spousal programme (anger management in a spousal context), they are placed on Probation.

At Kostman and Pyzer, Barristers, we are well informed, experienced, and familiar with the politic underlying Domestic Assault prosecution policies.  We can’t promise you a Peace Bond, but we can advance a strong argument that one should be available in the particular circumstances of your case.

Criminal defence lawyers are often asked to explain the difference between first-degree murder, second-degree murder, and manslaughter. Even though the general public hears these terms all the time – on the news, in the media, and on television crime shows – people are often confused about the difference between the three offences.

First-degree murder, second-degree murder, and manslaughter are all types of homicide. A person commits homicide when, directly or indirectly, by any means, he causes the death of another human being. However, the law recognizes that within the spectrum of possible homicides, there are various different degrees of culpability. Thus, the broad category of homicide has been divided into three subcategories: first-degree murder, second-degree murder, and manslaughter. Each subcategory reflects the level of culpability that we impute to the nature of the homicide.

According to s. 231(2) of the Criminal Code, first-degree murder refers to a murder that is both planned and deliberate. A murder is planned if it was conceived of and thought out before it was carried out. A a murder committed in the heat of an argument, where the murderer had absolutely no intention to kill the victim before the argument began, would not be considered planned. A murder is deliberate if the acts involved were intended and purposeful.  The plan to kill need not be elaborate or complicated and the deliberation need not be lengthy. All that matters is that you planned to kill the person at some point and that you deliberately carried out your plan. Though planning and deliberation usually go hand in hand, this is not always the case. For example, if you planned to kill someone by running them over with your car, and then by coincidence, you accidentally ran over them while you were driving your car to the store one day, the murder would have been planned but not deliberate. Thus, the Supreme Court of Canada has ruled that both planning and deliberation must be present for the murder to be considered first degree. According to the Criminal Code, contract killing is always planned and deliberate.

There are two reasons that a homicide could be categorized as first-degree murder regardless of whether it was planned or deliberate. According to s. 231(4), murdering an officer of the peace is always first-degree murder. For the purposes of this section, “officer of the peace” includes any member of the police force or anyone who works at a prison In addition, a murder is considered first-degree murder if it is committed in the course of the commission of an offence listed in ss. 231(5) or 231(6). The listed offences are hijacking, sexual assault, sexual assault with a weapon, aggravated sexual assault, kidnapping, forcible confinement, hostage taking, terrorism, intimidation, or any offence committed on behalf of a criminal organization.

Second-degree murder is any murder that is not first-degree murder. Section 231(7) of the Code states that any murder that cannot be characterized as first-degree, is considered second-degree murder. However, to be second-degree murder, the homicide must be characterized as “murder” as opposed to “manslaughter”. A homicide is categorized as a murder if the defendant intended to kill the victim. Thus, second-degree murder is a catchall category for all intentional homicides that do not fall under the specific categories of first-degree murder.

Manslaughter is the final category of homicides. Section 234 of the Criminal Code tells us that any culpable homicide that is not murder is manslaughter. Since “murder” is defined as intentional killing of a human being, any murder committed without intent to kill is manslaughter. The most common types of manslaughter criminal defence lawyers in the Toronto area encounter are unlawful act manslaughter and manslaughter by criminal negligence. The former refers to situations where an individual does something illegal that unintentionally leads to another person’s death. For example, if you were to break the law by carelessly firing your gun in a public place and you unintentionally killed someone, you could be charged with the unlawful act manslaughter. There are various mental states that mitigate in an accused person’s favour in situations where there is less than an actual intent to kill. Criminal negligence requires that the person’s act or omission qualified as a “marked departure” from the standard of behaviour expected of a reasonable person. The offence also requires that death or bodily harm was a foreseeable consequence of the defendant’s act or omission. The foreseeability requirement means that a reasonable person in the defendant’s place would have realized that the actions or omissions perpetrated would put another individual’s life in danger. An omission can only be considered criminal negligence if the defendant had a positive duty to act and failed to do so. The law does not impose a duty on individuals to go to the aid of others in distress. If a passerby failed to act to save a drowning swimmer it would not be viewed as criminally negligent since the passerby has no legal duty to go to the swimmer’s aid.

Under s. 232, if a person commits a murder in a heat of passion caused by provocation, the murder charge will be reduced to manslaughter. Provocation is defined as a wrongful act or insult that would deprive an ordinary person of the power of self-control.  Drunkenness or any drug induced mental state that would affect an individual’s ability to form the requisite intent to kill, would reduce murder to manslaughter.

Though the distinctions between first-degree murder, second-degree murder, and manslaughter are meant to distinguish between more and less blameworthy behaviour, all three offences carry serious penalties. Individuals found guilty of first or second-degree murder will be sentenced to life in prison. A person convicted of first degree murder is only eligible for parole after serving 25 years of their life sentence. A person convicted of second-degree murder will generally be eligible for parole after 10 years imprisonment. An individual convicted of manslaughter, the least “serious” type of homicide, is still liable to a maximum penalty of imprisonment for life. In cases where manslaughter was committed using a firearm, the offence also carries a minimum sentence of four years. In other cases, there is no minimum sentence for manslaughter and the penalty is left to the discretion of the trial judge.

Sometimes when an individual is charged with a crime, he or she will be detained in custody pending a bail hearing. At the bail hearing, the Crown Attorney must “show cause” – i.e., show the court why the accused should be kept in custody until his or her trial. If the Crown cannot satisfy a judge that there is cause to keep the accused in custody, he or she will be released into the community on bail while awaiting trial. The Crown can show cause that the accused should be detained only by establishing one of the following grounds:

1. That the accused is likely to fail to appear in court or flee the jurisdiction;

2. That the accused must be detained in order to protect the public; and/or

3. That the accused must be detained to maintain public confidence in the administration of justice.

Criminal defence lawyers and other legal professionals generally refer to the third ground as the tertiary ground.

The tertiary ground may be invoked by a Court to deny bail where public confidence in the judicial system would be damaged if the accused is released. It is generally accepted that a judge should only deny bail on the basis of the tertiary ground alone in exceptional cases involving heinous offences. For example, denying bail based on the tertiary ground was upheld by the Supreme Court of Canada in R. v. Hall, where the deceased was brutally murdered and almost decapitated. However, it is very important that the tertiary ground is not misused by judges caving to irrational public fears.

There are several factors a judge must consider before denying bail based on the tertiary ground. These include (a) the importance of the presumption of innocence, (b) the significance of the accused’s right to liberty and the constitutional right to bail, (c) the granting of bail must be considered on a case-by-case basis and there are no offences for which bail is automatically granted or prohibited, (d) the actual nature of the allegations and the fact that the allegations may or may not be proven at trial, (e) pre-trial custody can last for many months and can be a significant hardship on the accused and his or her family members,  and can complicate the accused’s ability to prepare their defence (f) the bail process should not be used to punish the accused before trial.

Canadian courts have refused to detain accused individuals solely on the basis of the tertiary ground even when they were accused with offences that most people would consider extremely disturbing. For example, the Court released a man accused of beating a robbery victim to death despite the Crown’s argument to detain him based on the tertiary ground, in R. v. Trout. In R. v. Ibrahim, the court released a man accused of deliberately beating a homeless person to death, based on the narrow interpretation of the tertiary ground. However, the court has used the tertiary ground to deny bail for extremely shocking or heinous offences, such as the brutal murder in Hall or the situation in R. v. White where a man was charged with the first-degree murder of his pregnant wife.

The decision to not detain an individual based on the tertiary ground alone requires that the court balance the shocking or egregious nature of the crime against the presumption of innocence and the accused’s Charter of Rights right to reasonable bail. Because of the emphasis on the presumption of innocence, the court is much more reluctant to apply the tertiary ground in situations where the evidence against the accused is weak. The court has indicated that in youth matters, the tertiary ground should be applied extremely rarely.

Recently, Toronto criminal defence lawyers have noticed that judges are more willing to apply the tertiary ground in situations involving guns and gang violence. This is partially explained by the increasing media attention and public awareness of gun and gang violence in the Greater Toronto Area.

Since 1996, judges in Toronto and throughout Canada have been able to sentence those found guilty of a crime to a conditional sentence as an alternative to incarceration. Canada has one of the highest rates of adult incarceration in the world. The conditional sentence was designed to allow some offenders who are sentenced to serve a prison term of less than 2 years to serve their sentence out in the community, under strict conditions and supervision. Conditional sentences are very popular with Toronto judges. Since the introduction of the conditional sentence, Toronto criminal lawyers have seen the rate of incarceration jump from 37% of convicted offenders in 1997 to 42% of convicted offenders in 2000, mainly because judges are granting conditional sentences where in the past they may have imposed a probation order rather than a sentence of incarceration.

Before choosing to impose a conditional sentence, a judge must be satisfied that the appropriate term of imprisonment is less than two years, that the offender does not pose a threat to the community, and that service of the sentence in the community would be consistent with the fundamental principles of sentencing outlined in the Criminal Code. In addition, a judge cannot impose a conditional sentence if the offence for which the offender is convicted carries a minimum sentence. Moreover, in 2007, Bill C-9 was passed, which made it impossible for judges to impose conditional sentences if the offence for which the offender is convicted is punishable by 10 years or more and is classified as a serious personal injury offence (e.g., sexual assault, aggravated assault, assault with a weapon, etc.), a terrorism offence, or an organized crime offence.

A conditional sentence is not the same as probation, though the optics are similar since in both circumstances the offender lives in the community but supervised by a Conditional Sentence supervisor and subject to conditions. However, according to the Supreme Court of Canada, probation is appropriate where the focus is on rehabilitation, whereas a conditional sentence is appropriate where the focus is on both rehabilitating and punishing the offender. A conditional sentence is imprisonment without incarceration in a custodial environment. Therefore, it is only appropriate to impose a conditional sentence in circumstances where imprisonment is warranted. Because of the focus on punishment, the conditions attached to a conditional sentence are often much more restrictive than those attached to a probation order.  According to the Supreme Court, house arrest should be a common requirement of a conditional sentence.

The Criminal Code outlines several mandatory and/or optional conditions of a conditional sentence. Mandatory conditions include keeping the peace and being of good behaviour, reporting to a supervisor, and remaining in the jurisdiction of the court. Optional conditions include a condition to abstain from drugs and/or alcohol, to abstain from owning, possessing or carrying a weapon, to provide support and care for any dependents, or to perform up to 240 hours of community service. The judge also has the power to impose any reasonable condition the court considers desirable in the circumstances. It is by virtue of this authority, that a Court will impose a condition of house arrest.

A condition of house arrest requires that the offender remain within in his home for a prescribed period of time. The conditional sentence order will ordinarily set out specific circumstances in which the offender may leave his or her home, for example, to go to the hospital in case of emergency, to report in with his or her court appointed supervisor, to go to work, or to go to school. At all other times, the offender must remain within the boundaries of his or her property. Often, the Court will allow for a small window of opportunity for the offender to look after their basic needs (for instance to shop for necessities). The Court will also ordinarily allow an exception for religious observation.

Compliance with a term of house arrest is monitored by the police and the conditional sentence supervisor. However, there is a growing trend for judges to enroll offenders in the Electronic Supervision Program as a condition of their conditional sentence.  The Electronic Supervision Program uses electronic monitoring technology to monitor an offender’s compliance with the terms of his or her house arrest. Offenders are fitted with a tamper-resistant, radio frequency based anklet transmitter. The anklet will send radio frequency signals to a receiver device installed in the individual’s residence. The offender’s presence or absence from the home is monitored by the Ontario Ministry’s Monitoring Center, 24 hours a day, seven days a week. Any violation of the individual’s conditional sentence as well as any technical issues with the monitoring equipment (including any attempt to tamper with an anklet or receiving device) will be immediately reported through a central computer to the Ministry’s Monitoring Center.  Registration in the Electronic Supervision Program is only an available condition for adult offenders. To be eligible for the Electronic Supervision Program, the offender must have a residence and a landline telephone. Toronto criminal defence lawyers have struggled with the growing use of electronic monitoring; however, Toronto lawyers have nonetheless noticed an increased use of these devices in recent years.

In Canada, the average length of a conditional sentence is 8 months. All or part of that may be spent under house arrest. As the sentence progresses, the conditions of a conditional sentence can be varied by a judge upon application by the offender and with the support of the conditional sentence supervisor. If the offender fails to comply with his or her conditional sentence, for example by violating his or her house arrest, he or she may be arrested and ordered to appear before a judge at some point in the next 30 days. If the judge is satisfied that the offender breached a condition of his or her conditional sentence, the judge may do nothing, vary the optional conditions, require the offender to serve a portion of the remainder of his or her term in custody, or require that the offender serve the entire remainder of his or her term in custody.

In 1995, despite resistance on the part of criminal defence lawyers and civil rights activists, Bill C-18 was passed, which amended the Criminal Code to create a regime for collecting DNA samples from convicted offenders. Many criminal defence lawyers had argued that requiring offenders to submit bodily samples interfered with their bodily integrity and infringed their right to privacy. Nonetheless, the amendments to the Criminal Code were passed, giving courts the authority to order that offenders give a DNA sample. Samples are stored in a national databank created by the DNA Identification Act for use in investigating unsolved past crimes and future crimes. Under the new regime created by the DNA Identification Act, a judge can make a “DNA order” after convicting an offender of certain proscribed crimes. These orders are legally binding, and the offender must surrender a sample of his or her DNA. The Supreme Court of Canada has declared the DNA order regime constitutional in several cases.

For the purpose of issuing DNA orders, the Criminal Code distinguishes between two types of offences: primary offences and secondary offences. DNA orders may be issued for an individual convicted of a primary or secondary offence. In reality, the two categories cover almost every common offence in the Code.

Primary Designated Offences are listed in s. 487.04 of the Criminal Code. There are over 50 offences designated as primary offences. They are mostly of a violent or sexual nature, but also include especially serious offences such as hijacking, using explosives, endangering the safety of an aircraft, and participating in terrorist activities. If an individual is convicted of a primary offence, the judge must make a DNA order with respect to that person, unless the defendant and his or her criminal defence lawyer are able to satisfy the court that the impact on the defendant’s privacy and bodily integrity significantly outweighs the public interest in protecting society through the early detection, arrest and conviction of offenders. The burden on the accused is particularly high. The defence lawyer must show that the negative effect on the offender would be “grossly disproportionate” to the benefits for society. A DNA order may be avoided for a primary offence if the offence was extremely minor (for example, a sexual assault that consisted of touching another person’s leg or buttocks) and/or the defence can show that there is very little chance of the offender reoffending.

Secondary Designated Offences are also listed in s. 487.04 of the Criminal Code. They include all indictable offence under the Criminal Code for which the maximum sentence is five years or more, and all indictable offences under s. 5 (trafficking), s. 6 (importing and exporting narcotics), and s. 7 (production) of the Controlled Drugs and Substances Act punishable by a maximum sentence of five years or more. Section 487.04 also lists almost 20 additional secondary designated offences, including escaping from custody, assault, arson, criminal harassment or uttering threats. If an individual is found guilty of a secondary offence, the court can make a DNA order if it determines that it is in best interests of the administration of justice to do so.  Often, the Crown Attorney will request a DNA order and make submissions to the judge arguing in favor of the Order, and the accused’s criminal defence lawyer will make submissions against the making of the Order. The court will then weigh a number of factors, including the submissions of counsel, the nature and circumstances of the offence, the criminal record of the accused, and the impact of such a DNA order on the accused’s right to privacy and security of the person, to decide whether a DNA order is warranted.

One of the most controversial aspects of the DNA Order Regime is that it applies retrospectively. According to s. 487.052 of the Criminal Code, the Court may order that DNA samples be taken from certain offenders convicted of committing a crime before Bill C-18 came into force. Retrospective Orders are made by way of an ex parte (without notice to the offender) application. They can be made against an individual who is serving a prison sentence of at least two years on the date of the application, for murder, certain listed sexual offences, or manslaughter, They can also be made against an individuals serving a sentence of at least two years on the date of application who has been declared a “dangerous offender” under the Criminal Code. Generally speaking, as a matter of fairness, laws only apply to actions committed after a law comes into force. However, in R. v. Rodgers, the Supreme Court of Canada declared retrospective DNA orders constitutional.

DNA orders can be issued to young offenders (individuals between the ages of 12 and 17 tried under the Youth Criminal Justice Act). The same rules about primary and secondary offences apply to young offenders. However, in the case of R. v. R. C., the Supreme Court of Canada ruled that it is appropriate to consider the underlying principles and objectives of the Youth Criminal Justice Act when determining whether to a DNA order against a young offender for a primary offence.

DNA orders can also be made when an individual is found “not criminally responsible” by way of insanity or mental illness [NCR] for a designated primary or secondary offence, even though an NCR finding is not technically a finding of guilt. Moreover, when a judge looks at an offender’s criminal record to determine whether to issue of DNA order for a secondary offence, they may consider any previous NCR findings in making their assessment.