Toronto Criminal Lawyers Blog

The G20 summit has brought our world’s most powerful leaders to Toronto. Discussion topics for the summit relate to international finance and development. Toronto will be hosting leaders from the United States, North Korea, South Korea, France and Germany, and that is just to name a few. Throughout the summit the world will be watching Toronto. The concentration of power and attention creates an ideal platform to advocate for a notable cause.  Many protesters will take the opportunity to amplify their voices and be heard on the world’s stage.  Will Canada’s Charter of Rights of Freedoms serve as a barrier between these protesters and potential criminal charges?

Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees everyone the fundamental freedom of thought, belief, opinion and expression, including the freedom of the press and other media of communication. The purpose of this guarantee was defined by the Supreme Court of Canada in R v Keegstra.  The three core reasons the right to freedom of expression is important are;

1. 1) To ensure the free flow of ideas in a democratic society
2. 2) To ensure free debate in order to allow truth to prevail in the market place of ideas
3. 3) To ensure citizens’ ability to self realize through expression is not restricted

Any expression that furthers the aim of any of these three purposes will be aggressively protected by the Charter. The topics protesters seek to bring attention to are likely to fall under one of the three types of speech listed above. An expression includes any kind of activity that conveys, or attempts to convey meaning. All forms of expression, except for violence, are protected.  The expression of protesters at the G20 summit will only be protected by the Charter if the chosen form of expression is non-violent.  Protesters are not permitted to throw things at passers-by, assault people or damage property.  Protesters who choose to participate in violent forms of expression will not be protected by the charter.

In Reference re Public Service Relations Act, the Supreme Court of Canada stated that although the freedom on peaceful assembly is a separate and distinct right, it is closely related to the freedom of expression.  Sections 2 (c) of the Charter, guarantee everyone the fundamental freedoms of (c) peaceful assembly.  The right to assemble is recognized as a human right, a political freedom and a civil liberty. The freedom allows citizens to assemble in public places in the context of a protest. Gathering together in a large group for a peaceful protest is a protected Charter right.

However, neither of these guaranteed freedoms is absolute.  The limitation on all our rights is set out in Section 1 of the Charter which states; “

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The scope of a person’s right is limited by the rights of others. The rights of individuals to assemble and express must be balanced against the right of society to peacefully enjoy public places. Before taking the opportunity granted during summit, be sure you know the scope of your rights, and their limits.  For example section 63 (1) of the Criminal code states;

63. (1) An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

Lawful assembly becoming unlawful

(2) Persons who are lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in a manner that would have made the assembly unlawful if they had assembled in that manner for that purpose.

This section makes it a criminal offence for people to gathered together to conduct themselves in a way that will cause an atmosphere of violence. An atmosphere of violence can be created by yelling threats, charging or creating loud noises.  Protesters do not have to participate in violent behaviour themselves to cause an atmosphere of violence. Also, the fact a group of protesters intended to lawfully assemble for a peaceful assembly is irrelevant. It is made clear by section 63(2) that a lawful protest can turn into an unlawful protest if three or more people in the group conduct themselves in way that creates an atmosphere of violence.  Regardless of the reason you have gathered together downtown during the G20 you should refrain from yelling threats, charging or pushing others and throwing things. These types of acts are likely to cause a fear of violence in those around you. The freedom of expression guaranteed by the Charter is limited by the right of others not to walk the streets in fear.  Even spectators and innocent bystanders must behave during the G20.  Section 65 of the Criminal Code, states;

Everyone who takes part in a riot is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

This section makes it a criminal offence to participate in any conduct that will cause an atmosphere of violence. A riot is a disturbance of public peace that is disorderly, noisy, and turbulent.   When a spectator observes protesters throwing rocks, picks one up and joins in, they can be charged under section 65. A spectator can be charged under this section for participating in non-violent activity such as, marching or making loud noises, provided the groups conduct as a whole can be classified as a riot.

It is still a criminal offence to cause a disturbance when the nature of disturbance cannot be classified as a riot. According to the Canadian Criminal Code, causing a disturbance is a criminal offence. Section 175(1)(a) provides:

175. (1) Everyone who, not being in a dwelling-house, causes a disturbance in or near a public place,

(i) By fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

(ii) By being drunk, or

(iii) by impeding or molesting other persons,

is guilty of an offence punishable on summary conviction.

This section creates an offence that further limits the way protesters can lawfully express themselves. During the G20 summit the public’s ability to enjoy peace and tranquillity in public places will limit protesters ability to express their concerns.  A disturbance occurs when the ordinary peace and behaviour that can be expected in a location is disrupted.  When the crowd at the perimeter fence is calmly observing, protesters ought to refrain from trying to get the crowd rowdy. Encouraging others in the crowd to engage in violent behaviour and damage property will cause a disturbance. Protester should refrain from aggressive behaviours, such as yelling obscenities, which may entice those around them to participate in disruptive behaviour.  Peacefully protesting at the G20 summit is lawful and unlikely to cause a disturbance.  Protesters are encouraged to march, hold signs and banners, and sing songs. It is important to remember that your freedom to assemble and express yourselves is not absolute. There are limits on the forms of expression protesters can lawfully engage in. If you or anyone you know has been charged with an offence relating to the G20, contact Kostman and Pyzer to ensure your rights are protected.

The second part of our continuing look at the interaction between World Cup celebrations and the criminal justice system relates to driving motor vehicles. To recap, during the World Cup it is common to see people hanging off of cars, waving flags and honking their horns. It is important to exercise caution when you take that celebratory tour around town. The driver remains responsible for the care and control of the vehicle during World Cup. The driving rules are not suspended during the World Cup celebrations. The police have the authority to charge drivers caught driving dangerously or carelessly. Whether the police choose to lay a dangerous driving or careless driving charge will depend on the nature of the unlawful driving. The spectrum of unlawful driving ranges from the more serious, such as speeding through red lights, to the less serious, such as incomplete stops.  Are you wondering what kind of World Cup driving practices can lead to these kinds of charges? Before driving off with your flag hanging out of the car window, you should familiarize yourself with the dangerous driving and careless driving laws.  Under the Canadian Criminal Code “dangerous driving” is a criminal offence. According to section 249 of the Code:

249. (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

This section makes it an offence to drive a motor vehicle in a manner that is dangerous to the public. A conviction under this section results in a criminal record and an automatic 1 year driving suspension. This is a hybrid offence. The prosecutor has the discretion to proceed either by indictment or summarily depending on the actual driving. In practice, unless someone suffers significant bodily harm or the offender has a severe previous record for similar offences, the Prosecutor will elect to proceed summarily. If the prosecutor elects to proceed by way of indictment, the maximum punishment for the offence is five years imprisonment. The basis of liability for a dangerous driving charge is negligence.  That means the court is not concerned with whether the driver intended to drive dangerously but rather they are concerned with whether objectively the driver exercised a reasonable standard of care.

Dangerous Driving under the Criminal Code is a separate offence from Careless Driving under the Highway Traffic Act. According to section 130 of the Highway Traffic Act;

Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years

This is a Provincial offence. A conviction for careless driving will not result in a criminal record.  A careless driving conviction will result in demerit points, a minimum fine of $400 and increased insurance premiums.  A conviction can also lead to imprisonment for up to six months and a license suspension for up to two years. The standard of driving which will attract a careless driving charge is less severe than driving which attracts a dangerous driving charge. The Ontario Court of Appeal has stated that driving is deemed careless when it is seen as a “breach of the duty to the public and deserving of punishment”.  The Court will consider whether, in light of the circumstances, the driver failed to use care or failed to give others using the highway the consideration that an ordinary driver would have given.  “Highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between lateral property lines. The degree of care drivers are expected to exercise depends on the prevailing circumstances.

During the World Cup finals, the streets are filled with fans and passengers of motor vehicles enjoy hanging out windows with flags in hand.  Drivers will be expected to exercise caution in these circumstances in spite of the fact that their favourite team has won an important game. Drivers should ensure that passenger conduct does not inhibit their ability to exercise care when driving through fan filled streets.

In the spectrum of unlawful driving, where does the division between careless and dangerous driving fall? The Supreme Court of Canada interpreted the meaning of “dangerous” driving in R v Hundal [1993] S.C.J. No. 29. In that case the Court clarified three important points.  First, the level of negligence the prosecutor must prove to secure a conviction is “a marked departure from the standard of care that a reasonable driver would observe under the circumstances”.  The offensive driving must be so out of the ordinary that a reasonable person would consider the operation of the vehicle dangerous. Therefore, minor mistakes and accidents that could have happened to anyone exercising care, will not amount to dangerous driving. In practice, a dangerous driving charge is likely to be laid in circumstances where it appears that the driver was driving recklessly. If you are the driver of a vehicle celebrating a World Cup win you should refrain from hanging out the window as you drive, and be reminded that the ordinary traffic rules are still in force.  The bar may be somewhat lowered to allow for jubilant expression during the World Cup. However, where the celebration puts other motorists or passengers in the driver’s car at risk, a Court is likely to consider such conduct as a marked departure from that of a reasonable driver exercising care. In these circumstances, charges of Dangerous Driving under the Criminal Code, or Careless Driving under the Highway Traffic Act, may be laid.

In deciding whether “driving” is dangerous contrary to the Criminal Code, a Court will consider the nature of the location including, the driving conditions, the way the location is being used and any other prevalent factors. These considerations are particularly important for drivers trying to get through World Cup traffic. During game celebrations, especially during the finals, the streets are filled with cars, pedestrians, bicycles, motorcycles, etc.  Drivers are expected to exercise more caution when driving in these circumstances.  A dangerous driving charge is more likely to result in situations where the unlawful driving lead to serious consequences, such as serious injury or death. When the unlawful driving does not cause injury or death but nevertheless fall outside the scope of reasonable care, a careless driving charge is more likely. In the event of a charge of “dangerous driving” or “careless driving”, the accused can offer an explanation for his/her abnormal driving.  For example, the driver may have experienced a sudden onset of illness. In order to accept an explanation as a justification, the court must be satisfied that a reasonable person in the accused circumstances would have acted in a similar way. During World Cup season many passengers and drivers will be celebrated excitedly inside their moving vehicles.  The driver of a vehicle is responsible for the behaviour of their passengers, especially if it affects the driver’s ability to drive safely or puts their passengers at risk. Celebrate responsibly.  If you have been charged with Dangerous Driving or Careless Driving, contact Kostman and Pyzer, Barristers for the best defence.

On June 2, 2010 through an order-in-council, the Ontario government secretly approved new sweeping powers for the police. Many Toronto criminal lawyers believe that these ‘police state regulations’ have gone too far and are inconsistent with Canadian civil liberties and the rights enshrined by the Canadian Charter of Rights and Freedoms. These new police powers allow the  Toronto Police Service and other police agencies to arrest and even jail individuals who refuse to produce identification or be searched within five metres of the security zone implemented for the G20 Summit being held in Toronto. The new measure carries a penalty of up to two months in jail or a $500 fine upon conviction. These new police powers were enacted without any prior announcement or public consultation. The obvious concern is that many Torontonians could walking the street without identification and unknowingly breaking the law by going within five metres of the newly erected security fence. All Toronto criminal lawyers and civilians should be concerned about secret laws and the government’s changing our rights without even telling its citizens. If you have been charged with an offence as a result of the Ontario government’s new measures, immediately contact a skilled criminal lawyer to find out what your rights are. These new sweeping police powers can, and will be, challenged. Toronto criminal lawyers, Kostman and Pyzer, will defend your rights to be protected from unlawful searches, seizures and arrests. Contact us today at 416-658-1818 for a free consultation.

World Cup Soccer has hit television screens across the country.  The highly anticipated event causes adrenaline rushes in fans across the globe. Soccer fans should remember that the way they choose to express their jubilation at winning and upset at losing can have criminal law implications. During the World Cup it is common to see people hanging off of cars, waving flags, honking horns, dancing in the streets in an intoxicated state, and, generally, creating a lot of noise. Sometimes the dynamic of a crowd can cause people to forget that the criminal law still applies no matter how many individuals choose the same form of expression. The reality is that some of the gregarious World Cup behavior can attract criminal charges. According to the Canadian Criminal Code, causing a disturbance is a criminal offence. Section 175(1)(a) provides:

175. (1) Everyone who, not being in a dwelling-house, causes a disturbance in or near a public place,

(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

(ii) by being drunk, or

(iii) by impeding or molesting other persons,

is guilty of an offence punishable on summary conviction.

This section of the Criminal Code creates a summary conviction offence.  The matter will be heard before a judge of the Ontario Court of Justice. The accused does not have the option of having a trial by judge and jury.

The word “disturbance” can be given a variety of differing definitions. At one end of the spectrum, “disturbance” means a disruption in the form of an annoyance or irritation. At the more serious end of the spectrum, the word may denote an actual physical disruption which could include violence. In the eyes of the law, not every event that ‘disturbs’ people will constitute an act which “causes a disturbance’. For example, smoking a cigarette or having an inappropriate conversation may disturb some people. However, these acts do not constitute conduct which can “cause a disturbance” according to the criminal law.

The phrase “cause a disturbance” has been definitively interpreted by the Supreme Court of Canada in R v. Lohnes, [1992] S.C.J.No. 6. In that case, the Supreme Court of Canada clarified that for purposes of the criminal law, a “disturbance” must have a secondary impact- i.e. A manifested interference with the ordinary state of affairs. The “disturbance” contemplated by s.175(1)(a) is something more than a mere emotional upset or annoyance.  The offensive conduct must cause an externally manifested disturbance of the public peace. For World Cup fans to run afoul of the criminal law, the celebration of a victory or the anger at defeat must cause an individual to express himself in some way that creates a disturbance of the public peace. The offence has two essential components:

1) The commission of one of the enumerated acts (fighting, screaming, shouting, swearing, singing or using insulting or obscene language, being drunk, impeding or molesting other persons); and,

2) causing a disturbance in or near a public place.

Whether or not the offending conduct has “caused a disturbance”, is a question of fact that will be determined by the court. The Court will consider the degree and intensity of the activity complained of and the degree and nature of the ‘peace’ that can be expected in the particular location at the particular time. The contextual circumstances of the behaviour is a very important consideration.  This means that to a certain extent the bar of appropriate(legal) behaviour may vary depending on the context. The same sentiment which may be expressed legally on College Street after Brazil, Portugal or Italy has scored a goal, may be illegal in a quiet suburb.  Yelling, screaming and swearing in Little Italy, when the Italian soccer team scores a winning goal, is not likely to cause a disturbance. The nature and degree of peace on College Street during the celebration of an Italian win is such that honking your horn and yelling does not cause a disturbance. Loud celebrations during World Cup season on College in the afternoon are markedly different from the same type of celebrations at 4.a.m. in a residential area where everyone is sleeping. The latter is more likely to be viewed by the Courts as the type of behavior that can cause a disturbance. Whether or not the behavior complained of actually constitutes the offence of ‘causing a disturbance’ is dependent on the consequences which arise from the behavior.

When you are celebrating those winning goals it is important to be aware of your surroundings. Living in a multi-cultural city like Toronto creates an intense situation during the World Cup. It is important to be mindful of the variety of cultures and backgrounds present in your environment. Yelling screaming and swearing in celebration with fellow supporters is different from yelling, screaming and swearing at the opposition. Shouting abusive language by itself will not likely create criminal liability. However, even in Little Italy, there is a limit to the type of celebratory behaviour which is tolerated. Starting a fight or a riot in the street is more serious and is likely to give rise to an offence under this section of the Code. The use of insulting or obscene language may initiate a “disturbance”. It is the foreseeable impact of the act which matters. The use of insulting and obscene language is not uncommon during the World Cup. Insulting another person in the street in a loud voice, and thereby attracting a crowd, may have criminal repercussions. When the use of insults or obscene language cause disorder or agitation and interfere with the normal use of the public area, a “disturbance” has been caused, and the perpetrators may be charged.

In order to secure a conviction on a charge of causing a disturbance the prosecution must show that the resulting disturbance was reasonably foreseeable in the particular circumstances. The person who caused the disturbance must have been able to foresee that such a reaction would result from his/her behavior. It will be up to a court to determine whether or not the perpetrator could have reasonably foreseen the outcome. However, it is important to remember that the Courts assessment of foreseeability is contextual. Therefore, the heightened state of emotions during the World Cup, and the increased parameters of civilized debate, are factors that the Court will ordinarily take into consideration. The Court will determine whether or not it would be reasonable for a person to foresee the “disturbance” quality of their actions. As stated, the same behaviour which may be illegal in the sleeping suburbs may be perfectly legal during a World Cup celebration. Context is everything.

Please don’t get the impression that during the World Cup there are no limits on what a person is legally permitted to do so long as they are celebrating or expressing their disappointment. Although more extreme behaviour may be tolerated, there is a point where outrageous behaviour will give rise to criminal consequences.

So, enjoy the World Cup and celebrate responsibly.  If you have been charged with “causing a disturbance” contact Kostman and Pyzer, Barristers for the best defence.