Toronto Criminal Lawyers Blog

None of us want to be in such a situation, but if you are accused of a crime for any reason, the first thing to do is hire a good criminal lawyer, someone who will protect your rights and ensure that you get justice. The process of choosing a lawyer is extremely important because your life may be at stake depending on the type of crime you’re accused of, so even if you’re not in a position to find a good lawyer, your friends and family members could take the following steps on your behalf:

• Don’t choose the first lawyer in the book: In our haste to retain the services of a lawyer, most of us end up choosing the first name in the book even though we have no idea how good a lawyer the person is. In general, it’s best to go with someone you know, and if this is not a possibility, then ask friends and family members to recommend people they trust.
• Choose according to your case: Find a lawyer who is experienced in dealing with the kind of cases that deal with the crime that you are accused of. You don’t want someone who has dealt only with civil cases taking on your criminal case or vice versa. Do your research before you hire or you’re going to regret your decision at a later stage. Ask them about similar cases they’ve handled and about the outcome of these cases.
• Talk specifics before you hire: Your lawyer does have your best interests at heart, but that does not mean you should hire him/her without talking about the costs involved in handling your case. You don’t want to be hit with hidden costs that add to the financial and emotional burdens you’re already going through.
• Discuss the case: Ask questions about the case, what processes are involved, how long it’s going to take to complete, how your life is going to be affected by the case, and how much time your lawyer will be able to devote to your case. You don’t want to hire a lawyer only to never see him/her during its course. Also ensure that they themselves will be responsible for handling the case instead of deputising their subordinates to do most of the work.
• Choose someone you’re comfortable with: And finally, you must be able to trust your lawyer with the truth, so if you’re not comfortable with the first person you’ve chosen, don’t hesitate to find someone else.

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This guest post is contributed by Brooklyn White, who writes on the topic of Forensic Science Technician Schools . She can be reached at brooklyn.09white-AT-Gmail.com.

The jury system is one of the most fundamental institutions in Canada’s criminal justice system. Under the Canadian Charter of Rights and Freedoms every person has the right to be tried by a jury of their peers. The jury is seen as an impartial way of determining whether or not the accused person is guilty.

In the context of the trial of a criminal allegation, the jury is composed of 12 individuals called “jurors”. Jurors are selected at random from the population. In order to be eligible for jury selection an individual need only be a Canadian citizen over the age of 19.  However, you will be disqualified from serving as a juror if you are a police officer, lawyer, trustee in bankruptcy, employee of the Ministry of the Attorney General or if you have been convicted of certain criminal offences within the last five years. You may also be exempted from jury duty if you meet certain qualifications such as if you are a student or if you suffer from a health condition that impairs your ability to be a juror. Exemptions are decided on a case-by-case basis. Jurors will then undergo a “jury selection process”. During the selection process, jurors may be asked specific questions by the Crown Attorney and the accused individual’s criminal defence lawyer. The lawyers will either approve the person for the jury or “challenge” their presence on the jury, in which case they will not be selected to sit in the jury.

The twelve members of the jury are sworn to render an impartial verdict as to whether an individual is guilty or not guilty of a crime. The jury is charged with determining all questions of fact (such as “was the defendant in a certain location at a particular time” or “did the defendant in fact hit the victim”?) while the judge retains the duty of determining questions of law (such as “is the defence of self-defence available to the accused in these circumstances” “what kind of behaviour qualifies as negligence under the law”). The judge will instruct the jury on issues of law and the jury will try to determine the actual events that transpired and whether they give rise to the alleged offence.

The jury will hear all the evidence which is admissible against the accused person and render a decision in the matter. They will sit in the courtroom at all times when admissible evidence is adduced, and will hear testimony from witnesses, view physical evidence, and receive instructions from the judge on the relevant law. At the end of the trial, the jury will be sequestered in a room to deliberate as to their verdict. The jury must reach a unanimous verdict. When a jury cannot reach a unanimous verdict it is known as a “hung jury”. In the case of a hung jury, a mistrial will be declared and the case may be retried before a new jury. In all other cases, the jury will render a verdict of “guilty” or “not guilty”. A person is never found to be “innocent” of a crime, the jury will simply conclude that there is not enough evidence to find the person guilty and render a verdict of “not guilty”.

During the course of the trial, jurors have a duty to avoid learning about the trial from outside sources such as the media, family or friends. They are not allowed to conduct their own investigation into the crime by speaking to witnesses or collecting evidence outside of the courtroom. They must decide the case based on the facts that have been presented to them during the course of the trial. During the deliberation process this duty is heightened. During deliberation, the jury cannot have contact with any individual other than the other jurors. They are denied access to the media and cannot even phone family or friends until a verdict has been reached. They cannot ask to speak with the accused individual, the Crown Attorney, the criminal defence lawyer or the judge. If they do, this will be seen as a reversible error, meaning that the court of appeal will be forced to order a retrial. In Canada, jurors also have a legal duty to keep the contents of their deliberations secret. They cannot reveal the opinions of other jurors or anything that was said behind closed doors even after the verdict is rendered. This is not the case in the United States where jurors can talk about the contents of their deliberation after the final verdict is rendered. As such, you will sometimes hear American jurors speak to the media about the trials in which they’ve participated. In Canada, if a juror were to do so, he or she could be charged with contempt of court, a criminal offence.

A “head juror”, known as the “foreman”, leads the jury. The foreman is ordinarily chosen before the beginning of their deliberations. The foreman has the duty of asking questions on behalf of the jury. The jury may require clarification on a point of law from the judge and it will fall to the foreman to ask for this information. The foreman is also responsible for reading the verdict in open court once the jury has completed its deliberation.

Every Canadian has a right to choose to be tried by a jury if they are accused of an indictable offence that carries a maximum penalty of five or more years of imprisonment. The process of choosing to be tried by jury is known an “election”. The election is a choice, and, in most cases, an accused person is free to choose to be tried by judge alone. An individual may not choose to be tried by jury if they are accused of a minor offence. That is because these offences are very common and do not result in harsh penalties. Though the jury system is important, it comes at great cost and can be very disruptive for the lives of the individuals who have been chosen as jurors. For this reason, under Canadian law, juries are reserved for the more serious indictable offences. For the most serious offences such as treason or murder the individual must be tried by both judge and jury under s. 469 of the Criminal Code of Canada, unless both the defendant and Crown Attorney agree that judge alone is sufficient. Electing to be tried by jury is a personal decision that you should discus with your criminal defence lawyer prior to making a formal election.

Trust Kostman and Pyzer, Barristers if you are in need of a Toronto criminal lawyer!

Before 1982, it was permissible for criminal defence lawyers to attack the credibility of complainants in sexual assault cases by asking them questions about their sexual history. Criminal defence lawyers would ask these questions to suggest that the complainant might be lying about the alleged rape. Criminal defence lawyers routinely use a witness’s past behaviour to attack their credibility on the witness stand; as such, the credibility of a witness is an important issue at any trial. If a criminal defence lawyer can establish that a material witness has a tendency to lie or if the lawyer can expose a motive why he or she may be lying now, this will undermine the Crown’s case and often lead to an acquittal.

However, in the 1980s the government was very concerned with the ability of defence lawyers to question complainants in sexual assault cases about their sexual history. Though both men and woman can be complainants in sexual assault cases, the government was primarily concerned about questioning women because it felt that questions about a woman’s sexual history may play on the stereotypes and prejudices of judges or juries. The main concern was that these questions may lead the judge or jury to acquit a defendant based on what the Supreme Court of Canada referred to as the “Twin Myths”. The myths are that (i) a woman who is sexually experienced is less credible as a witness and/or (ii) a woman who is sexually experienced is more likely to have consented to the sexual activity in question. The government felt that there was a danger that juries and judges may be acquitting defendants based on these two stereotypical assumptions, rather than based on the merits of the evidence before the court.

As a result, Parliament responded in 1982 by enacting section 276 and 277 of the Criminal Code of Canada. These two provisions together came to be known as the “rape shield legislation”. In 1991, the Supreme Court of Canada declared that the original rule was unconstitutional in a case called R. v. Seaboyer. In Seaboyer the court said that the rape shield legislation, as drafted, was in danger of excluding potentially relevant evidence and in doing so hindered the defendant’s ability to make full answer and defence. Since the ability to make full answer and defence is protected by s. 7 of the Canadian Charter of Rights and Freedoms, legislation that interferes with a defendant’s ability to make full answer and defence violates the Charter. When legislation violates the Charter the court is entitled to declare that the legislation is “of no force and effect”. This means that it will be rendered inoperative unless the government chooses to remove the unconstitutional parts.

Of primary concern to the court in Seaboyer was the potential that the rape shield legislation could make it impossible for defendants to establish the defence of “honest mistaken belief in consent”. This defence rests on the idea that the accused may honestly but mistakenly have believed that the complainant was consenting to the sexual act in question. If the defendant is able raise a reasonable doubt as to his intention to commit sexual assault on the basis that he honestly believed the complainant was consenting, he is not guilty under law and is entitled to an acquittal. The defendant may legitimately believe that the complainant consented based on the sexual history that existed between the complainant and defendant at some other time or place. Nonetheless, s. 276 would bar the criminal defence lawyer from questioning the complainant about any such past event. This is problematic as it deprives the defendant of a legitimate defence.

The court was also concerned by the rape shield legislation because it undermines the right of criminal defence lawyers to attack the credibility of the complainant by proving  that the complainant is biased or has a motive to lie about the evidence. For example, in the American case of State v. Jalo the defendant was a father who discovered his daughter and son having sex. The father stopped them and, out of malice, the daughter accused him of raping her. Had this case happened in Canada evidence of the daughter’s past sexual act with her brother would be excluded under the rape shield legislation, even though this fact is extremely relevant to the case because it showed that the daughter had a motive to lie. Moreover, it would be impossible for the criminal defence lawyer to properly explain the father’s defence with any force or credibility without questioning the daughter about the incident. The court concluded that the Rape Shield Legislation therefore has the potential to deny a defendant the building blocks of his or her defence undermining his right to make full answer and defence.

As a result the Supreme Court of Canada struck down the rape shield legislation saying that it was too broad, in that it prevented defendants from asking the complainant legitimate and relevant questions about his or her sexual history.

The government responded to Seaboyer by rewording the rape shield legislation. Now, the rape shield legislation creates a procedure intended to eliminate elements of surprise and needless exposure of the complainant to inappropriate questioning. . A strict procedure must be followed whenever an accused seeks to tender evidence under s. 276(2):

1. 1. Application in writing specifying in a detailed way the particulars of the evidence and why the defence claims it is relevant to an issue at trial.
2. 2. If notice requirements are met and the trial judge believes that the potential evidence is capable of being admissible under s. 276(2), then, a voir dire is held in to determine the admissibility of a particular line of questioning. The complainant cannot be compelled to testify at the voire dire. However, the defence, must at minimum establish that such an inquiry should be allowed due to specific concerns. This is problematic because it may alert the Crown to the details of the defence’s argument in an attempt to get evidence into the trial.
3. 3. If the application succeeds the trial judge must give mandatory reasons and specific reference must be made to the factors in s. 276(3).

In R. v. Darrach the Supreme Court of Canada confirmed that s. 276 is constitutional. According to the court, “the current s. 276 categorically prohibits evidence of a complainant’s sexual history only when it is used to support one of two general inferences. They are that a person is more likely to have consented to the sexual assault and that she is less credible as a witness by virtue of her prior sexual experience. Evidence of sexual activity may be admissible, however, to substantiate other inferences…” Based on this finding, the court found that the new legislation did not interfere with the defendant’s ability to make full answer and defence. As such, it does not violate the Canadian Charter of Rights and Freedoms.

Despite the ruling in Darrach that the new process set up in the amended s. 276 is constitutional, there are still some ways in which the new s. 276 is problematic for criminal defence lawyers. For example, while the old s. 276 only prohibited questioning about sexual activity with an individual other than the accused, the new s. 276 refers to sexual activity with the accused or with any other person. Thus, the new s. 276 is, in some ways, wider in scope than the old provision. The new provision creates a presumption that evidence of prior sexual conduct between the accused and complainant is inadmissible. This evidence can only be admitted if it passes through the special process created by s. 276 and it is deemed admissible by the trial judge.

The restriction on admitting evidence of the sexual history between the defendant and complainant causes some interesting situations to occur at trial. It can be extremely hard for the judge or jury to understand what happened in a particular case if the accused is prevented from leading evidence of the sexual relationship up to that point. Essentially, s. 276 often forces criminal defence lawyers to present the human relationship to the court in abstraction, placing it before the judge or jury as a discrete event happening at a particular place or time without any evidence of the events leading up to the alleged sexual assault or the sexual nature of the relationship between the accused and the complainant prior to the assault.

The special procedure created by s. 276 is unique to Canadian law. Several lower court decisions suggest that it should be changed to only prohibit evidence that leads the court to base their decision on stereotypical inferences. Moreover, as the general public’s stereotypes and opinions change, the danger that judges or juries will base their decisions on the “twin myths” decreases. Several legal scholars, such as David Paciocco, suggest that evidence of prior sexual history with the accused should be admitted under s. 176(2) if the defendant can establish that a specific inference could be drawn from the evidence that would be relevant to an issue at trial. This change would respect the dignity of complainants during cross-examination while still allowing the defence to put forward relevant arguments based on the sexual history between the accused and the complainant.

Kostman and Pyzer, Barristers. Toronto defence lawyers you can trust!

Entrapment

Entrapment is one of the many defences available in the criminal justice system. However, criminal defence lawyers will only pursue a defence of entrapment if the facts suggest that this defence may be successful. Only rarely will the facts of the case support a defence of entrapment.

All defences are split into two categories: excuses and justifications. Justification defences are defences the accused can raise to show that he or she did the right thing in the circumstances and should therefore not be punished. The best example of this is self-defence. Defendants who raise an excuse defence, on the other hand, admit that they committed a crime and acted immorally, but assert that they have an excuse for the way they acted. A good example of an excuse defence is mental illness. Entrapment is also an example of an excuse defence. This means that when a defendant raises a defence of entrapment, they admit to committing the crime in question, however, they argue that they have a reasonable excuse for their conduct.

The idea behind entrapment is that the individual was enticed or provoked into committing a crime by the police. When the police overstep their duty to investigate crime and instead initiate or create a crime, the defence may arise. The rationale behind the defence is that it constitutes abuse of process on the part of the Crown prosecute an individual, if his or her crime was motivated by police instigation. As a result, if the defence can establish entrapment, the court will stay the proceedings against you. The result of a stay is that the case against you cannot proceed, no guilty conviction is entered against you and the incident will not appear on your criminal record.

A defence of entrapment tends to be available on charges relating to drugs or prostitution. The general scenario is that the police will have an undercover agent approach an individual soliciting sex or trying to buy drugs. If the individual agrees to purchase sex or sell drugs, the police will then arrest them on charges of solicitation for the purposes of prostitution or trafficking in narcotics. If the police conduct reached the point that they are actively encouraging an individual who would not ordinarily have committed a crime to commit an illegal act, the defence of entrapment may become available.

The defence of entrapment was successfully raised in the case of R. v. Mack. Mack was a former drug addict who had reformed and given up drugs with the help of yoga. Nonetheless, police officers decided to target Mack in an undercover operation to search for evidence of drug trafficking. The police enlisted two confidential informants to contact Mack. The informants approached Mack asking for drugs, but he refused to sell them. Later, the informants followed Mack to a yoga retreat while still undercover and harassed him to arrange a drug deal for them. Mack still refused to be involved in any form of drug transaction. Finally, the confidential informants took Mack on a walk in the woods, where they told him that their “people” were coming into town today and needed drugs. The informants told Mack that their people would be very “upset” if Mack could not get them the drugs. Then, the confidential informants showed Mack a pistol and said, “someone could really get lost out here in the woods”. Following that threatening statement, Mack relented and agreed to procure a large amount of cocaine for them. Mack showed up at the arranged transaction spot, was shown a suitcase of money, and made the exchange. Unbeknownst to Mack, the two men he was making the drug exchange with were undercover police officers. Following the exchange, Mack was arrested.

The Supreme Court of Canada allowed the defence of entrapment to succeed in Mack and stayed the proceedings against him. The court emphatically explained that the police should not engage in “random virtue testing” of the population. By this the court meant that the police should not test the virtue of individual citizens by offering them the opportunity to commit a crime at random. When the police do this, they seem to create crime and then arrest people for the crimes they create. The individual arrested may never have committed a crime in his or her life if not for his or her interactions with the police. Such conduct on the part of the police offends our justice system’s fundamental values of justice and fairness.

In Mack the Supreme Court laid down a test to determine when entrapment has occurred. At the first stage of the test, the court asks whether the police have targeted individuals based on a reasonable suspicion that the individual is involved in crime or through involvement in a bona fide investigation. According to the court, anything short of reasonable suspicion or a bona fide investigation would constitute random virtue testing. A bona fide investigation is an authorized investigation in a targeted area. For example, the police can target a particular area if they have reasonable grounds to believe criminal activity is prevalent there; however, they cannot walk the streets at random posing as civilians and trying to encourage individuals to commit crimes. If the police target an individual who they do not have reasonable grounds to suspect is involved in criminal activity or they target random people outside the context of a bona fide investigation, the defence of entrapment will operate to stay the proceedings against the defendant.

Even if the first part of the test is not met, the defence of entrapment may still be available to the defendant under step two of the test from Mack. At step two, the court must consider a number of factors to determine whether the police manipulated or directed the defendant to commit the crime. The court refers to this as “planting the seed of crime” within the individual. The idea is that, by “planting the seed of crime”, the police cause a person who may never have committed a crime to engage in criminal activity. In the case of Mack, the court determined that even though the police had reasonable grounds to suspect that Mack may be involved in criminal activity, they went so far as to “plant the seed of crime within him”; thus, the court allowed the defence of entrapment under the second branch of the test.
In Mack the court lists a number of factors to help determine whether the police crossed the line and “planted the seed of crime”.

The list of factors for the court to consider are as follows:
• the type of crime being investigated and the availability of other techniques for police detection of its commission;
• whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;
• the persistence and number of attempts made by the police before the accused agreed to committing the offence;
• the type of inducement used by the police including: deceit, fraud, trickery or reward;
• the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
• whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
• whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
• the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;
• the existence of any threats, implied or express, made to the accused by the police or their agents; and
• whether the police conduct is directed at undermining other constitutional values.

The court will look at these factors to determine whether or not to stay the proceedings due to entrapment.

Make sure that you are represented by competent criminal defence lawyers. Call Kostman and Pyzer, Barristers.

A paralegal is a individual who is not a lawyer, but who is licensed to undertake specific forms of legal work.  For example, paralegals often assist lawyers. In addition, paralegals are licensed to perform certain types of legal work without the direction or supervision of a lawyer.

Paralegals operating in Ontario must be licensed by the Law Society of Upper Canada. Once licensed, a paralegal may practice in specific areas of law. According to Law Society By-Law 4, a paralegal can represent an individual:

• • In Small Claims Court,
• • In the Ontario Court of Justice in respect of a charge under the Provincial Offences Act (e.g., a speeding ticket or traffic ticket),
• • On a summary conviction charge under the Criminal Code for which the maximum penalty does not exceed 6 months imprisonment, and
• • Before administrative tribunals (e.g., Financial Services Commission of Ontario which deals with Pension and Insurance cases)

However, the powers of a paralegal representing a person in one of the above-mentioned proceedings are limited. The paralegal cannot do all the things that a criminal defence lawyer operating in the same proceeding would be capable of doing. The scope of the paralegals powers allow the paralegal to:

• • Give legal advice concerning legal interests, rights or responsibilities with respect to a proceeding or on the subject matter of a proceeding,
• • Draft or assist with drafting of documents for use in the proceeding, and
• • Negotiate on behalf of a person who is a party to a proceeding.

Though a paralegal can give advice or draft documents, they may do so only with respect to a specific proceeding. A paralegal cannot give general legal advice or draft general legal documents (such as a will or contract).

To become a licensed paralegal, an individual must have graduated from a legal services program approved by the Ministry of Training, Colleges and Universities within the three years prior to the date that they apply to be licensed. The legal services program must have included a minimum of 18 courses on legal services with the permitted scope of the practice of a paralegal, a course of ethics and professional responsibility, and a internship/ field placement in a legal environment (such as a courthouse or law firm) for a minimum of 120 hours. Qualifying legal services programs are the “court and tribunal agent” programs offered at community colleges and the “paralegal” programs often offered at private career colleges. After June 2010, all applicants will be required to have graduated from an accredited legal services program. To date, the law society has accredited ten college paralegal programs. All applicants must write a licensing examination in order to become a licensed paralegal.

To become a paralegal, applicants must also satisfy a “good character requirement”.  Generally, you can satisfy this requirement by providing the Law Society with a police clearance check or reference.

Paralegals tend to specialize in a legal niche whereas lawyers are given a more holistic training. As a result, lawyers tend to analyze facts and develop legal strategies, whereas paralegals are generally responsible for carrying out specific tasks required to put those strategies into action. The most important difference between a lawyer and a paralegal is that a lawyer can give legal advice. A paralegal, on the other hand, can give advice pertaining to the specific task at hand (“I suggest you fill out this form”) but not general advice (“if you do this, you will not be liable”).

If you are charged with a criminal offence, retain a criminal defence lawyer from Kostman and Pyzer, Barristers, for effective legal representation.