Toronto Criminal Lawyers Blog

In the controversy surrounding Tiger Wood’s recent driving accident, it has been rumored that Mr. Wood’s blood tests from the hospital revealed that he had consumed alcohol, prescription drugs and sleeping pills before his now-infamous car crash. However, because the police did not request a breathalyzer at the scene of the accident, the media speculates that the blood samples taken from Tiger at the hospital will not be admissible against him in a court of law, should he be charged with an offence arising out of the accident.

If the same thing were to happen in Toronto, would the blood samples be admissible against Tiger Woods assuming he was charged with impaired driving? According to Canadian law, the blood samples obtained from Tiger at the hospital would be admissible in a Canadian court if and only if certain preconditions are met.

Section 8 of the Canadian Charter of Rights and Freedoms guarantees that every individual has the right to be free from unreasonable search and seizure. The testing of an individual’s breath, urine, or blood constitutes “search or seizure” under the law. In order for the police to obtain the sample without violating section 8 of the Charter, they must establish that the search/seizure is reasonable under the law and obtain a search warrant.

The police would have to obtain a search warrant in order to lawfully obtain the samples. A search warrant must be obtained from a judge. A judge will grant a search warrant if he or she finds that, based on the information contained in an application known as a “sworn information”, the officer has reasonable grounds to believe that the individual was impaired at the time of the accident. Thus, one of officers investigating the Woods collision would have to file a “sworn information” stating that he or she had reasonable grounds to believe that Tiger Woods was impaired at the time of the accident. The officer would also have to include a description of the evidence on which he or she formed that belief. The information cannot be based on the results of the blood, urine or breath test. It would be unfair if the police could use the results of the test in order to obtain permission to obtain those results. Thus, the officer must provide independent grounds on which he or she suspects that alcohol or a drug was involved in the collision. For example, if the officer or any witness smelled alcohol on Mr. Wood’s breath, if the hospital or ambulance staff reported smelling alcohol on Mr. Woods, if empty alcohol containers were found in Mr. Wood’s car, if witnesses described Mr. Wood’s behaviour as indicative of intoxication, etc., these factors would provide evidence to support a search warrant request. The judge would then determine whether the sworn information contained sufficient reliable evidence to issue a warrant.

Even if the officer obtains a warrant, the bodily samples taken from the accused will be inadmissible under s. 8 of the Charter if the defence can prove that they were taken without the accused’s consent, prior to the issuing of the warrant, for no purpose other than evidence collecting. If the samples were taken for legitimate health reasons, the police can obtain them after-the-fact pursuant to a warrant without breaching the Charter. However, the police cannot ask the doctor to take the samples and then go get a warrant. This would constitute a breach of the accused’s Charter rights. In the recent case of R. v. Grant the Supreme Court of Canada explicitly stated that “forcible taking of blood samples” will almost always breach the Charter. If the police were to have a nurse or doctor take the samples from the accused for police purposes, this would likely constitute a forcible taking (as the accused is tricked into giving the sample) and the sample would not be admissible at trial. However, if the samples are taken for legitimate health reasons, there is no reason that they would not be admissible after the fact, so long as the officer can persuade a judge that there are reasonable grounds to believe that the accused was impaired, and obtain a search warrant.

Once the Crown has established that the taking of the samples did not breach section 8 of the Charter, the Crown must prove that the samples are a true representation of Tiger’s Blood Alcohol Concentration (BAC) at the time of the accident. To do this, they must establish timing and continuity of the samples.

Under normal circumstances, the Crown benefits from a presumption that the BAC measured in the samples corresponds to the accused individual’s BAC at the time of the offence. In order to benefit from this presumption, the Crown must prove a number of things. For example, two samples must be taken, they must be taken within two hours of the offence, they must be taken “as soon as practicable”, there must not be any unreasonable time delay between the samples, the samples must have been taken by a qualified medical practitioner or qualified technician under the supervision of a doctor, and the samples must be placed directly in approved containers. A number of these conditions may have been lacking in the Woods case. For example, there may have been unreasonable delay between the accident and the taking of the samples, they may not have been taken within the two-hour window, and they may not have been secured directly into an approved container. For this reason, it is unlikely that the Crown will benefit from the presumption. Therefore, the Crown will have to prove that Mr. Wood’s BAC at the time the samples were taken was the same as Mr. Wood’s BAC at the time of the offence. For example, Tiger Wood’s defence lawyer could argue that Mr. Woods consumed the impairing substances right before driving, and that there was not enough time between consumption and driving for the effects of the substances to set in. The Crown will have the burden of disproving this argument.

Proving continuity means proving that the particular bodily samples being entered into evidence did, in fact, come from Mr. Wood’s body and that they have not been tampered with. Under usual circumstances, continuity is presumed because the samples are taken in the police station and immediately sealed and taken to the Center for Forensic Science where they are tested. However, since hospital samples may not have been officially sealed, continuity will be more difficult to prove. The Crown will have to call every individual who handled the samples prior to their collection by the police, as witnesses. In R. v. Katsigiorgis, the court ruled that it is not a violation of s. 8 for the police to seal the samples prior to obtaining a search warrant, in order to preserve continuity. However, there is no evidence that the police did this in the Tiger Wood’s case.

If the Tiger Woods incident occurred in Toronto and the police were able to prove reasonable grounds, obtain a search warrant, establish that the samples were taken for legitimate medical reasons, and establish timing and continuity, the samples would be admissible in a court of law. As the case played out in Florida, the Florida police released a statement saying that they did not suspect any foul play before the rumors about Tiger’s blood samples began to circulate. Assuming the exact same facts occurred in Toronto, this press release would make it extremely unlikely that the Toronto police could obtain a search warrant and seize the samples. This is because, by admitting that they did not suspect foul play, the police admitted that they did not suspect that Tiger was impaired. In other words, they admitted that they did not have reasonable and probable grounds to obtain a search warrant. Thus, if Tiger was indeed impaired at the time of the accident, the evidence of impairment would not be admissible at trial, whether that trial occurred in Florida or Toronto.

Sexual assault is a criminal offence under s. 271 of the Criminal Code. Sexual assault is defined as any form of sexual contact without the consent of either party involved in the “sexual” activity.

Consent is a defence to sexual assault. If the accused and their criminal defence lawyer can satisfy the court that the complainant actually consented to the sexual act, the accused will not be found guilty of sexual assault.

According to s. 273.1(1), “consent” is defined as the voluntary agreement of the complainant to engage in the sexual activity in question. To constitute consent for legal purposes, the complainant must have consented voluntarily; thus, consent is meaningless if it is obtained through threats. Moreover, the complainant must have consented to the specific sexual activity the court is considering. Thus, it is not a defence that the complainant consented to sexual activity with the accused in the past. He or she must have consented to the specific sexual act that is alleged to be objectionable.

Moreover, there are several situations in which the court deems that consent is “vitiated” – in other words, though it may seem that the complainant consented, his or her consent “doesn’t count” as a defence to sexual assault where the “consent” in not voluntary and with full knowledge of the nature of the sexual act. Under s. 273.2, consent is “vitiated” in a number of ways:

(1)  If the complainant is “incapable” of consenting because he or she is not old enough, or unable to understand due to extreme mental or physical disability, consent is vitiated by law. However, there are other special sections of the Criminal Code dealing with sexual assault against minors or the disabled, so the issue of consent would have to be considered in the context of the special rules associated with those offences, and the specific ages of the alleged offender and the complainant.

According to legal precedent, a complainant is “incapable” of consenting to sex if he or she is so intoxicated that his or her consent is meaningless. Thus, if the Court determines that the complainant was so intoxicated that he or she could not possibly have comprehended the significance of giving consent – even if it seemed to the accused at the time that the complainant was consenting – the consent will not count as a defence to sexual assault. However, where the accused has a mistaken but honest belief in consent and that belief is held on reasonable grounds, they cannot be convicted, since there is a lack of mens rea or criminal intent.

(2)  Consent is also vitiated if the accused is (a) in a position of trust, power, or authority, and (b) he or she uses that position to induce the complainant to perform sexual activity. This section applies to teachers, bosses, psychiatrists, doctors, and other individuals who have a relationship of power, control, or dominance over the complainant. The person must not only be in a position of power, but must abuse that power to convince the complainant to consent to sex.

(3) Consent can also be vitiated by conduct. Thus, even if the complainant says the word “yes”, but expresses somehow by words or actions that he or she actually means “no”, the consent will not count at law. Moreover, if part way through the sexual act, the complainant expresses through words or conduct, that he or she did not wish to continue, any sexual activity after that point will be considered non-consensual.

(4)  The court must also consider the accused’s own mental state to determine whether consent is a valid defence. The defendant cannot claim that the complainant indicated consent through words or actions if the accused’s belief in consent arose from his or her own self-induced intoxication or recklessness or willful blindness. In other words, if the accused went through with the sexual activity without any regard to whether the complainant was consenting (recklessness), or purposefully ignoring any signs that the complainant might not be consenting (willful blindness), then consent is vitiated. Moreover, if the accused was so drunk that they didn’t pay attention to whether the complainant was consenting, this is not a defence to sexual assault. If, however, the accused became intoxicated through no fault of their own, for example, if their drink was drugged at a party, the court may take this into account when deciding whether to accept the defence.

As a general rule, under s. 272.2(b), the accused is under a legal obligation to take steps, in the circumstances known the accused at the time, to ensure that the complainant consents to the sexual act.

Finally, under s. 265(2), consent is vitiated if the complainant only consented to sexual activity because of fraudulent representations made by the accused. Thus, if the accused committed fraud in order to obtain consent, the complainant’s consent would not “count”. However, only certain types of fraud vitiate consent. These are fraud as to the actual nature of the act or any bodily harm that might result from the act.  For example, if a doctor told his patient that he was performing a medical procedure to obtain her consent and then actually committed a sexual assault, that would constitute fraud as to the nature of the act, and the patient’s consent would be vitiated. Or, if the accused told the complainant that the sexual activity they were going to engage in would not be violent, and then proceeded to act violently, the complainant’s consent would be vitiated due to fraud. However, if the accused simply lied about their name, age, marital status, job, or other personal details, this would not constitute fraud for the purpose of vitiating consent.

There is some case law supporting the argument that lying about your HIV status constitutes a form of fraud which can vitiate consent. Thus, if the complainant consented to sex based on the accused’s statement that he or she was not HIV positive, consent would be vitiated due to fraud and the accused would likely be found guilty of sexual assault. Recently, there have been prosecutions of individuals for sexual assault and criminal negligence causing harm or death, where the accused was HIV positive and did not disclose that fact to his partner prior to unprotected sexual activity.

There is confusion amongst members of the public as to whether or not simple possession of marijuana is illegal. This confusion has been caused by various court decisions and a policy of discretionary enforcement by the police. Simple possession of marijuana, possession for the purpose of trafficking, and production of marijuana are illegal in Canada. The law as it relates to simple possession of cannabis (less than 30 grams for personal use) is contentious in some areas. It is important to note that, in 2007 Toronto Police spokesman Mark Pugash said that, despite some discrepancies in the law, nothing will change about how the police deal with marijuana for the time being. Thus, while this article provides a helpful summary of the evolution of the law with regards to marijuana in Canada, we suggest that you do not change your personal practices based on the information contained in this article. One should remember that although even the various police associations have recommended decriminalization, possession is still illegal, and a finding of guilt in relation to simple possession of marijuana can have far reaching consequences.

Medical Marijuana

In the 2000 decision, R. v. Parker, the Supreme Court of Canada declared that the law against possession of marijuana violated the Canadian Charter of Rights and Freedoms insofar as it failed to create an exception for medicinal marijuana use. The defendant, Terrance Parker, suffered from severe epilepsy. He tried to control his seizures through conventional medicine and surgery but found that neither improved his condition as much as smoking marijuana. He grew his own marijuana plants since there was no place where he could legally obtain the drug. Twice, the police raided his home, confiscated his marijuana and he was charged with production of marijuana. At trial, he argued that the law prohibiting marijuana possession infringed his s. 7 Charter of Rights right to “life, liberty, and security of the person”. The Ontario Court of Appeal considered both the harmful and therapeutic effects of marijuana and came to the conclusion that the law against possession of marijuana for therapeutic/ medical purposes was unconstitutional. The Court declared that Parker should be able to make choices about his medical treatment as those decisions would greatly affect his overall health. The law against possession interfered with Parker’s security of the person by depriving him of the ability to make decisions that would affect his physical and psychological integrity without fear of criminal prosecution. Moreover, the court found that the “blanket provision” on marijuana possession, without an exception for medical use, did not enhance the interests of the state and therefore there was no justification for interfering with Parker’s right to make decisions over his own healthcare. However, the Court also found that the prohibition on marijuana for recreational use did enhance state interests by preventing the harms associated with marijuana. The court concluded that s. 4 of the Controlled Drugs and Substances Act, the prohibition against possession of marijuana, was too broad in that it did not contain an exception for medicinal use of marijuana. The court declared the section invalid, but suspended the declaration of invalidity for one year to allow Parliament an opportunity to draft a new prohibition that included in it an exception for medicinal use.

The government of Canada responded swiftly to the decision in R. v. Parker. In July of 2001, Health Canada issued a set of regulations giving individuals access to marijuana for medical purposes. The Medical Marijuana Access Regulations, which went into effect July 31st, 2002, outlined two categories of individuals who may legally access marijuana prescribed by their doctor. Category 1 patients include:

·      Individuals suffering severe pain from multiple sclerosis, spinal cord injury, or spinal cord disease,

·      Individuals suffering severe pain, cachexia (loss of body mass that cannot be reversed nutritionally), anorexia,            weight loss, and/or severe nausea from AIDS or cancer,

·      Individuals suffering severe pain from arthritis, and

·      Individuals suffering seizures from epilepsy.

Category 2 allows individuals suffering from debilitating symptoms from medical conditions (most commonly severe pain), other than those described in category 1, to apply to Health Canada for access to medicinal marijuana. Category 2 individuals must have the support of a medical practitioner. Individuals who have a condition described in category 1 or who are approved under category 2 can legally obtain medicinal marijuana distributed by the company CannaMed or can grow their own for personal consumption. It is also possible to become a licensed grower for others with medicinal need.

Thus, it is possible to have legal access to marijuana for medical purposes in Canada. More controversial is recent legal opinion on the legality of recreational use of marijuana.

Recreational Use

Ever since marijuana was criminalized in Canada in 1923 there has a strong opposition movement that continuously advocates for legalization or decriminalization of the drug. As early as 1972 Canada’s Le Dain Commission recommended the decriminalization of cannabis. Legalization advocates often point out that the drug is no more harmful than alcohol or tobacco and should therefore be regulated in a similar fashion.

Activists and litigants usually make one of two constitutional arguments in favor of cannabis legalization.  First, many marijuana activists claim that smoking marijuana is not really an act of a criminal nature and as such the federal government does not have the authority to ban it under the criminal law power. The Constitutional Act of 1867, divides law-making power between the federal government and the various provincial governments. The federal government has jurisdiction over all matters of criminal law, whereas the Provincial governments have law-making power over issues dealing with property and civil rights. Many marijuana activists claim that banning marijuana is not actually a matter of criminal law since smoking marijuana is neither harmful nor immoral. They further argue that regulating marijuana is rightly a property issue and that as such only the province has the power to regulate the use, distribution, and sale of marijuana. This argument would equate marijuana with alcohol, which is also regulated independently by the governments of each province.

Courts have, for the most part, rejected this argument and concentrated on the harmful effects of marijuana such as health effects for users, international effects of drug trafficking around the world, and issues with production and trafficking and their relationship to terrorism and organized crime both in and outside of Canada, to continue to view marijuana as a criminal issue.

Nonetheless, there has been some support from government sources for the view that marijuana is not harmful and should be treated on par with tobacco and alcohol, rather than under the matrix of the Controlled Drugs and Substances Act. For example, in September of 2002, the Special Senate Committee on Illegal Drugs reviewed Canada’s anti-drug law and concluded that marijuana is not a gateway drug and should be treated more like tobacco or alcohol than harder drugs such as cocaine or heroin.  Their report stated that, “the continued prohibition of cannabis jeopardizes the health and well-being of Canadians much more than does the substance itself.” In response, the House of Commons Special Committee on the Non-Medical Use of Drugs did an overall audit of Canada’s drug strategy and concluded that though marijuana is unhealthy, the criminal penalties for possession and use of small amounts of cannabis at the time were disproportionately harsh. The Committee recommended that the Canadian Minister of Justice and Minister of Health create a strategy to decriminalize possession and cultivation of a specified amount of marijuana (less than 30 grams for personal use).

Following the Committee’s recommendations, the Chrétien government introduced several versions of a bill to decriminalize simple possession of marijuana from 2002 to 2003. This effort was originally geared towards decriminalization, but as time moved on, the focus shifted to prescribing alternative penalties; fines rather than criminal charges would be prescribed when individuals were found with small amounts of marijuana. To date, the federal government has not followed through with Bill C-17. The current Harper administration has instead proposed Bill C-15, which proposes to create mandatory minimum sentences for production of marijuana. If Bill C-15 passes into law, individuals convicted of growing even one marijuana plant would face a mandatory minimum of six months imprisonment. Bill C-15 has been passed in the House of Commons and is currently under review in the Senate. Bill C-15 seems to indicate a sharp change in the Canadian government’s attitude towards small-scale marijuana use.

The second common argument legalization activists make is that the law against simple possession of marijuana violates the Canadian Charter of Rights and Freedoms in some way. During the last 5-10 years, there have been judicial decision decisions both affirming and rejecting the argument that the law against recreational use of marijuana violates the Charter. This has led to some confusion over the legal status of marijuana.

In January 2003, an Ontario provincial court judge, Justice Douglas Phillips, declared in R. v. J.P. that, based on the ruling in R. v. Parker, s. 4 of the Controlled Drugs and Substances Act [CDSA] dealing with simple possession of marijuana was invalid. As mentioned above, in the Parker case, the Ontario Court of Appeal declared that s. 4 of the CDSA was invalid in that it did not create an exception for medicinal marijuana. The court then suspended the declaration of invalidity for one year to give the government a chance to draft an alternative provision. In response to Parker, the Canadian government enacted the Medicinal Marijuana Access Regulations; however, it never enacted an amended version of s. 4. Justice Phillips concluded that, as of July 31st, 2001 – when the one-year suspension on the declaration of invalidity ended – s. 4 was officially declared invalid and therefore no longer had any legal effect. Just nine months later in October 2003, the Ontario Court of Appeal reversed Justice Phillips decision in R. v. J.P. The court said that, while the medicinal marijuana regime needed to be improved, the law against recreational marijuana was constitutional despite the defendant’s argument that it violated s. 7 of the Charter.

In December 2003 the s. 7 question finally came before the Supreme Court of Canada in R. v. Malmo-Levine. Section 7 of the Charter of Rights declares that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The defence argued that, by attaching a criminal penalty of imprisonment to simple possession of marijuana, s. 4 of the CDSA deprived him of liberty in a manner that is not in accordance with the principles of fundamental justice. The defence suggested that it is a principle of fundamental justice that the criminal law can only prohibit activities that cause some sort of harm. The court disagreed, concluding that while the “harm principle” may be one consideration legislators take into account when enacting laws, it does not constitute a “principle of fundamental justice”. Moreover, the court said that while arbitrary or irrational laws could be quashed under s. 7, the prohibition against simple possession of marijuana was neither irrational nor arbitrary. Malmo-Levine also failed to convince the court that the penalties associated with marijuana were unconstitutional pursuant to s. 12 of the Charter (the prohibition against “cruel and unusual punishment”) or s. 15 of the Charter (the equality provision). The court unanimously ruled that the law against recreational use of marijuana did not violate the Charter in any of the ways suggested by the defence in Malmo-Levine.

Barely four years later, in 2007, the constitutionality of the law against simple possession came before the court again in R. v. Long. A judge of the Ontario Provincial Court found that the law against simple possession was unconstitutional in that it did not contain a specific exemption for medicinal marijuana. Like in R. v. J.P., the judge in Long believed that the policy remedies introduced by the government through the Medical Marijuana Access Regulations, the Interim Supply Policy, and the Policy on the Supply of Marihuana Seeds and Dry Marihuana, did not address the specific problems in the wording of s. 4 of the CDSA. However, in 2008, the Ontario Superior Court of Justice reversed the decision saying that the circumstances resulting in s. 4 being found unconstitutional in Parker had been remedied by the Regulations and Policies mentioned above.  As a result, the Court held, the current s. 4 provision is constitutional.

Thus, the law against simple possession seems to be continuously evolving. Different judges have different interpretations of the law and criminal defence lawyers are constantly advancing new and creative arguments attacking the constitutionality of the law. Nonetheless, for the time being, simple possession of marijuana remains illegal.

Our clients are often concerned about the effect a criminal conviction could have on their ability to travel to the United States. If you are convicted of a criminal offence in Canada, that conviction could have repercussions on any future plans to enter the United States. The US has strict entrance laws for foreign visitors with criminal records.

Under American law, foreigners may be denied entrance to the United States if they are deemed to be “inadmissible” by the Bureau of Customs and Border Protection. There are three categories of criminal behaviour that render an individual inadmissible.

Categories of Inadmissibility

• Drugs The most common reason Canadians are denied entry to the United States is a prior drug-related conviction. Any violation relating to a controlled substance (even simple possession of marijuana) can be grounds for denying a foreigner entry to the US.
• Crimes Involving Moral Turpitude The term “crimes involving moral turpitude” (CIMTs) refers to a large category of offences which are considered to be contrary to community standards or community morals. Though there is no definitive list of CIMTs, decades of immigration cases have led to the evolution of a non-exhaustive list of crimes which are always considered CIMTs. Some examples are fraud, arson, blackmail, burglary, embezzlement, theft, counterfeiting, perjury, kidnapping, manslaughter, murder, prostitution, and rape. Simple assault or assault with a weapon are not CIMTs. However, assault with intent to kill, rape, commit a robbery, or cause serious bodily harm is a CIMT as is assault with a dangerous weapon. For a good list of crimes that are CIMTs see http://en.wikipedia.org/wiki/Moral_turpitude.
• Multiple Criminal Convictions If you have been convicted of two or more criminal offences you may be denied entry into the United States. This rule encompasses any type of offence regardless of whether it is a CIMT. The only exception to this rule is for political offences. Political offences are offences which an individual commits for a political purpose. Following the decision in Dunlayici, an offence only qualifies as a political offence if it is directed against the government and forms a part of an on-going or contemplated political struggle. This exception also tends to be limited to political offences which do not involve the use of violence.

These categories are so comprehensive that, in practice, almost any Canadian with a criminal record is likely ineligible for entry to the United States.

Convictions

A conviction for one of the offences listed above has the ability to render an individual inadmissible to the United States. However, U.S. law uses a very broad definition of the term conviction. U.S. law recognizes that an absolute discharge from a Canadian criminal court does not qualify as a conviction for immigration purposes. However, a Canadian conditional discharge is considered a conviction for US immigration purposes. This means that if you were charged with a criminal offence which falls into one of the categories of inadmissibility and you were granted a conditional discharge you are likely ineligible for entry into the United States. A conviction from a Canadian criminal court likewise qualifies as a conviction under U.S. immigration law and leads to inadmissibility.

Furthermore, under US immigration law, even if you are acquitted at trial or the charges against you are stayed, you may still be deemed inadmissible to the U.S.. This can happen in two different ways. First, if you admit to committing a crime but you are nonetheless acquitted by a Canadian court that acquittal is a deemed conviction for US immigration purposes. This could happen, for example, if you admitted to committing a crime at trial but were acquitted based on a successful claim under the Canadian Charter of Rights and Freedoms. The second way you may be deemed inadmissible, regardless of having been acquitted by a Canadian court, is if you admitted at trial to committing acts which constitute the essential elements of an offence. An acquittal (where you do not admit committing a crime or committing certain acts which constitute all the essential elements of a crime) does not render you inadmissible to the U.S.

Criminal Behaviour

There are some types of criminal behaviour which can render an individual inadmissible even if they have never been convicted of a crime. This occurs when an Immigration Officer knows or has reason to suspect that an individual has engaged in two specific types of criminal behaviour.

• Controlled Substance Trafficking If an immigration officer knows or has reason to believe an individual is or has been trafficking in a controlled substance that person may be excluded under U.S. immigration law. This rule also applies to individuals who assist, abet, conspire or collude with others to engage in trafficking.
• Prostitution and Commercial Vice If an immigration officer knows or has reason to believe that an individual is coming to the United States to engage in prostitution that person can be excluded. This rule also excludes individuals who have engaged in prostitution within the last 10 years. Individuals who attempt to procure or import prostitutes or who receive profits from prostitution (“pimps”) are also deemed inadmissible by this rule. Finally, this rule excludes individuals who an Immigration Officer believes to be traveling to the United States to purchase the services of a prostitute (“johns”).

Exceptions

There are a number of exceptions to the laws which govern this type of inadmissibility. For example, a Canadian conviction which, had it been committed in the U.S., would have been treated as an act of juvenile delinquency under U.S. federal guidelines will not count as a conviction for U.S. immigration purposes. This means that if you are convicted of a crime committed before your eighteenth birthday you likely will not be deemed inadmissible to the United States. There are also some circumstances where a single conviction for a CIMT will be overlooked for immigration purposes. If you have committed a crime and want more information on your eligibility to enter the United States visit the Bureau of Customs and Border Protection website at: http://www.cbp.gov/ or contact a local immigration lawyer.

Pardons

If you have a criminal record which renders you ineligible for entry into the United States, you may be able to enter the U.S. if you obtain an entry waiver or a criminal pardon in Canada. If you are pardoned in Canada, the offence will not appear on your record when you attempt to enter the United States. If however, you have made an unsuccessful attempt to enter the United States, the offence will already be on record with the Bureau of Customs and Border Protection, and you may have to obtain an entry waiver to enter the US.

The best way to make sure you are able to enter the United States is to avoid a criminal conviction. If you are facing criminal charges be sure to contact Kostman & Pyzer, Barristers, to ensure that a criminal accusation does not become an impediment to your ability to travel.

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.

Facing criminal charges can be intimidating and stressful. One of the first obligations the court puts on an individual accused of a crime is to “retain counsel”. In other words, the court hopes that you will find a lawyer as soon as possible to help you with your case. We strongly encourage you avoid representing yourself (see our blog on “The Self-Representing Accused” for more information on the dangers of representing yourself at trial). However, we understand that choosing a lawyer can often seem like a daunting task. There are so many lawyers to choose from and there are so many factors to consider. Here is some advice on how to sort through all the information to choose the ideal lawyer for you.

The first thing to keep in mind is that if you are facing criminal charges you should be looking for a criminal defence lawyer. You may already have a lawyer who looks after your business, taxes, will or other matters. However, finding a lawyer is not like finding a family doctor — one lawyer cannot deal with all your legal problems. The type of lawyer you select should correspond to the problem you are facing. Though there are some lawyers who do not specialize in criminal law who will take criminal law cases, most lawyers only practice in one area of law. When you begin searching for a lawyer to represent you in your criminal charges, you can make your search much easier by limiting it to criminal defence lawyers from the outset. Moreover, it is in your best interest to select a lawyer whose focus is criminal law. Criminal charges can jeopardize your livelihood and liberty, so you want to make sure that the individual who represents you is an expert in criminal matters.

Once you have limited your search to criminal defence lawyers, you will notice that there are a lot of factors which differentiate between individual practitioners of criminal law. People wading through all the information on the different lawyers out there often choose to focus on factors such as age, what law school the lawyer attended, and what firm the lawyer works with. These factors are largely irrelevant. Some young lawyers have excellent success rates — far outshining older lawyers. Some of the best lawyers choose not to work in large firms and prefer to work as sole practitioners for lifestyle reasons that have nothing to do with their legal competence. Finally, excellent criminal defence lawyers, judges and legal scholars have graduated from every Canadian law school. At the end of the day, the most relevant factors when it comes to choosing a criminal defence lawyer are cost, personality and experience.

Your budget will be a major determinant of what lawyer you retain. However, this is not necessarily a bad thing. It is simply not the case that all the good lawyers are incredibly expensive. Moreover, some of the best lawyers in and around Toronto do a great deal of Legal Aid case work. If you do require Legal Aid, you should inquire at the Legal Aid Office closest to you about obtaining a list of lawyers in your area who take Legal Aid cases.

If you do not require Legal Aid, you must decide how much you are willing to pay for a lawyer. Remember that in some cases, a good criminal defence lawyer may be the most important investment you make in your life, as your criminal defence lawyer is the most significant person standing between you and a criminal record, large fine, conditional sentence and/or, most importantly, jail time. With that in mind, make a generous but realistic determination of what you can afford. Try asking yourself two questions: (1) “how much do I want to pay for a lawyer?” and (2) (depending on the type of charges you are facing) “how much can I pay to avoid going to jail?” or “how much can I pay to avoid having a criminal record?” or “how much can I pay to avoid these charges interfering with my ability to see my children on a regular basis?”. You should aim to find a criminal defence lawyer who charges somewhere between the answer to question (1) and the answer to question (2). Most lawyers will want to meet with you before they give you an estimate of how much your matter will cost. This is because they often have to hear the full story before they can estimate how much time and effort your matter will require. This method is in your best interest as well since the best way to learn important information about a potential criminal defence lawyer, most notably their personality, is to meet with the lawyer in person.

Personality is an important factor to consider when choosing a lawyer. You want someone who you feel comfortable with, as you will have to communicate with your lawyer consistently throughout the trial process. You also want someone who strikes you as being competent and trustworthy. Remember that this lawyer is going to be representing you in court, so if he or she doesn’t make a good first impression when you meet, he or she probably will not make a good first impression on a judge either. Other factors to look for are common sense (as your lawyer will be helping you make important life decisions) and discretion (as you will have to trust your lawyer with some of your most private personal information).

Finally, it is important to look to experience when choosing a criminal defence lawyer. By experience we do not necessarily mean age or even the total number of years the lawyer has been practicing. Rather, we mean the lawyer’s experience dealing with cases similar to your own. A lawyer who has been practicing for five years, but has accepted a high volume of weapons-related cases is far more useful to an individual facing a weapons charge than an individual practicing twenty years but taking mostly impaired driving cases. The lawyers at our offices, for example, specialize in drug-related charges, weapons-related charges, domestic assault charges, drinking and driving charges, theft charges and fraud charges. We also represent a lot of young offenders. If you have outstanding charges in any of these areas, or other similar areas, we invite you to contact our offices by calling 416-658-1818 to arrange a meeting with one of our lawyers.