The arguments against the adduction of hearsay statements for proof of their truth are many-fold. First, and foremost, is the lack of opportunity for contemporaneous cross-examination. If the statement is being tendered into evidence as proof of its truth then surely the person who disputes its validity should have an opportunity to depose or “question” the person on his knowledge of the statement. This is not possible when a statement is tendered into evidence by a person other than its maker. Secondly, the trier of fact, whether it is a judge or jury, cannot observe the declarant’s reaction on cross-examination. This is an important point because the credibility of the witness is often said to be at its most revealing during cross-examination. Thirdly, the person repeating the hearsay statement in court may have been mistaken or confused as to what they have heard. Statements made in one context may be markedly different in meaning if made in another.

This does not mean, however, that all hearsay statements adduced into evidence for their truth are de facto inadmissible. There are certain enumerated exceptions to the rule against hearsay which have developed over the years by way of the common law – otherwise known as “judge made law” – or are provided for by way of statute. Some of the most notable are confessions, business records made in the ordinary course of business, excited utterances, dying declarations, declarations against interest and present sense impression. The most obvious unifying feature of these exceptions is that they are made in circumstances which significantly minimize concerns as to their reliability. Take for instance the exception of a dying declaration. The most famous example of this exception unfolded in an old British case where a woman who had her throat slit ran outside of her house screaming “Look what Patrick did to me” – Patrick being her husband. Any witnesses who may have heard the woman would be barred from repeating that statement in court as proof that Patrick slit her throat. However, under this exception, and many of the others which are predicated on similar reasoning, the courts consider that such a statement was made in circumstances that provide it with a significant degree of reliability and lessen the potential for concoction or misunderstanding.

More recently, the Supreme Court of Canada developed yet another avenue to adduce hearsay statements into evidence as proof of their contents. The “principled approach” is to said to assess the factors of necessity and reliability. Thus, hearsay evidence that did not fit into one of the categorical exceptions could now be admitted if the evidence was shown to be both necessary and reliable. This is a contextual analysis which the trial judge will be charged with determining, and will vary depending on the facts of each case.

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.

]]> http://blog.torontodefencelawyers.com/2010/06/freedom-of-expression-limited-by-g20/feed/ 2 http://blog.torontodefencelawyers.com/2010/05/diversion-in-criminal-cases/ http://blog.torontodefencelawyers.com/2010/05/diversion-in-criminal-cases/#comments Sun, 30 May 2010 13:10:40 +0000 TDL http://blog.torontodefencelawyers.com/?p=119 A criminal record can have a serious impact on your future. The effects of a criminal record can include restrictions on your travel ability and future employment. If you are not a Canadian citizen, you may have to wait several years before being allowed to apply for citizenship or you may be deported.

If you are charged with a criminal offence and have been offered diversion, it is generally in your best interest to enrol in the program.  Diversion essentially means you are being diverted out of the criminal justice system. This is because the Crown is agreeing to withdraw all charges against you after you complete the diversion program. This voluntary program is also referred to as direct accountability. The program is designed to enable first time non-serious offenders to avoid the negative impacts of criminal charges and a criminal record.  Diversion allows offenders to avoid the stressful prosecution process and affords better outcomes than those possible in the criminal justice system (except an outright acquittal). Diversion is also beneficial to the state as it relieves the heavy burden placed on the courts, police and probation officers.

The diversion program is not available to everyone; the Crown must offer it to those offenders who are eligible. The only person with the authority to determine who is eligible for diversion is the Crown Attorney (the Office of the Crown Attorney).  When a criminal charge is laid it is vetted by the Crown Attorney’s office. An Assistant Crown Attorney conducts an initial screening to determine diversion eligibility.  The factors the Crown will consider in assessing eligibility are;

• Whether the person has a criminal record or past dealings with police;
• Cooperation with police upon arrest;
• The seriousness of the offence (amount of money lost, alleged harm done, etc.);
• The cost of prosecuting the case in comparison to the seriousness of the offence;
• The impact a criminal record may have upon an individual accused in comparison to society’s interest in ensuring are punished for wrongdoings; and,
• The wishes of the alleged victim (if there is one).

If you are eligible for diversion, then you will be notified by the Crown at or before your first court appearance. It is important to note that an initial screening of ineligibility can be reconsidered. The Crown may be persuaded by counsel to change their unfavourable position. If this is your first offence and you have been advised that you are ineligible for diversion you should contact legal counsel as soon as possible to ensure that all possibilities for diversion are considered.

Diversion programs are dependent on the individual’s willingness to make amends and accept responsibility for their actions. The offender is required to admit responsibility generally for their role in the alleged offence. It is important to remember that upon completion of the program all charges will be withdrawn.  Therefore, your admission to the offence will not impact your criminal record. Also, all conversations you have with the diversion officer are confidential; they cannot be used against you later. Section 717(3) of the Criminal Code of Canada states:

No admission, confession or statement accepting responsibility for a given act or omission made by a person alleged to have committed an offence as a condition of the person being dealt with by alternative measures is admissible in evidence against that person in any civil or criminal proceeding.

Not all charges are eligible for diversion the most common offences to which it is offered are possession of marijuana (small amounts), communication for the purposes of prostitution and theft under $5000. Generally, more serious charges, such as fraud, will not be eligible for diversion.

The program requirements will differ depending on the individual and the charges they are facing.  They can range from counseling courses, charitable donations, community service hours and restitution.  Upon completion of the program the Crown will withdraw the charges.  This means the offender will not be at risk of incurring a criminal record and its dire consequences. If you have been denied diversion it is important to contact counsel to ensure you minimize the risk of a criminal record.

Although you may think you’re being detained every time an officer stops you, not every stop will legally amount to a detention. Therefore, it is important to know what constitutes “detention”. The Supreme Court of Canada in 2009 defined detention as a suspension of an individual’s liberty interest by a significant physical or psychological restraint. Psychological detention arises when the individual has or reasonably believes they have the legal obligation to comply with restrictive requests or demands of an officer. In that case, three Toronto police officers were patrolling a high crime school area when they saw Mr. Grant acting suspiciously.  A uniformed officer approached him and asked for identification and what was going on. Mr. Grant continued to behave suspiciously. Worried about their safety the officers asked him to keep his hands in front of him.  Two other officers arrived and obstructed Mr. Grant’s ability to walk forward. The court found Mr. Grant was psychologically detained when he was told to keep his hands in front of him and when the other officers moved into a position preventing him from walking forward. 

What if you are pulled over by the police while driving your car? The police can pull you over for either a routine safety check or for a Highway Traffic Act violation.  These are the types of stops that occur when you are speeding, you have a broken tail light or the police have set up a check-stop to ensure all drivers are licensed and insured.  When you are stopped in this situation the driver must surrender all appropriate documents and identification to the officer.  However, the driver and occupants are not compelled to provide any additional information to help the officers’ investigation. The occupants of the vehicle, including the driver, have the right to refuse to answer any investigative questions. Canadian citizens have no duty to assist the police in their investigation of crime.

When you are stopped in this situation the police officers may check the exterior of the vehicle to ensure compliance with the Highway Traffic act. They can check for visual appearance, brake and headlights, signals, meter seal, cleanliness, seat belts, ect.   In the absence of a warrant these types of check do not permit the officers to search the inside of your vehicle. During a traffic violation stop or a routine check the police may only search the inside of your vehicle if they have reasonable and probable grounds to arrest, and the police have a search warrant. 

How can the police form the grounds to arrest you during a routine check or a traffic violation stop? If a prohibited or suspicious item is visible to the officers in their plain view they will form the required grounds to conduct a search of the interior of your vehicle.  Items such as drug paraphernalia, weapons, break and enter tools or anything resembling them may permit the police to search the inside of your vehicle, in the absence of a warrant.  Neutral items, such as pagers and phones or items which could be found in any car for any legitimate reason will not justify a search of your vehicles interior or trunk.

What if you are walking down the street and the police stop you for questioning? The police have a limited power to stop you in this situation. They are allowed to stop you for investigative purposes. However, this is only permitted when an on duty officer can put a reason into words why he/she believes you are implicated in current or recent criminal activity. Discriminatory reasons do not amount to an articulable cause for detention. This means, they may not stop you on the sole reason of your race, gender, or membership in a group. This detention is very limited. The police may ask for your name, identification and reason why you are present at the scene.  The police may only search you in this situation if the officer has reason to believe his safety is at risk. They may not search for evidence or drugs, they may only search for weapons or anything that may jeopardize their safety. The Supreme Court of Canada has directed that one can only be detained for investigative purposes in circumstances wherein the police have a reasonable suspicion that the person is involved in specific criminal activity. A suspicion or hunch is not enough.

The majority of prostitution-related offences relate to solicitation in a public place. For example, s. 213 of the Criminal Code makes it an offence to

• stop or attempt to stop a motor vehicle,
• impede the free flow of pedestrian or vehicular traffic,
• enter or leave a premises adjacent to a pedestrian walkway or vehicular motorway, or
• stop or attempt to stop a person

in a public place or a place open to public view for the purpose of engaging in prostitution or obtaining the services of a prostitute. According to s. 213, a public place includes any place to which the public has access by right (e.g., streets, parks, public buildings). However, a “public place” also includes a place where the public has access by invitation such as a bar or club. The part of the provision relating to a “place open to the public view” makes it an offence to engage in certain prohibited conduct in the interior of a car located on a public street.

It is also an offence under section 210 of the Criminal Code to keep or use a “common bawdy-house” and under section 211 to transport a person to a bawdy-house. Section 210 catches both individuals who use the bawdy-house, in other words people who attend at the bawdy-house in order to obtain sexual services, and individuals who “keep” a bawdy-house. “Keep” is defined in the Criminal Code to include almost every person associated with the business of the bawdy-house: the owner, any employees or assistants, anyone acting on behalf of the owner, and managers.

The Criminal Code defines a “bawdy-house” as “a place that is kept or occupied, or resorted to by one or more persons, for the purpose of prostitution or the practice of acts of indecency.” Based on this definition, the laws relating to a common bawdy-house make it an offence to engage in prostitution in a private dwelling, if that dwelling can be said to fit the definition of a bawdy-house. The definition is so broad that most acts of prostitution occurring in private dwellings will be caught by this law. Everything from a single individual living alone selling sexual services to a traditional arrangement where several women live together under the supervision of a “pimp” or “madam” would fall under the definition of a “bawdy-house”. Thus, in conjunction, sections 211 and 212 dealing with prostitution in private dwellings and section 213 dealing with prostitution in public places together criminalize almost every transaction leading up to an act of prostitution, even though they do not criminalize the actual exchange of sexual services for money.

Section 212 of the Criminal Code also makes it an offence to “live of the avails of prostitution”. This provision catches any person who shares in a prostitute’s earnings. Owners of bawdy-houses and pimps are commonly charged with offences under this provision. Living off the avails of prostitution is considered a relatively serious offence and can carry a jail sentence of up to ten years. There exists in law a rebuttable presumption that any person who cohabits with a prostitute, is in the habitual company of a prostitute, or lives in a common-bawdy house is “living on the avails of prostitution”. “Rebuttable presumption” is a legal term that means that if the Crown Attorney can adduce evidence to show that an individual is living in one of the three scenarios described above the court will assume that that individual lives off the avails of prostitution, unless the accused individual’s criminal defence lawyer can successfully introduce evidence that refutes that assumption. This rebuttable presumption only applies to individuals who receive a direct portion of the prostitute’s earnings. It does not apply to indirect profiting, so it would not catch the child or family member living with a prostitute.

Section 212 also creates a number of offences relating to the procurement of prostitutes. These provisions are generally considered the most serious provisions in the Criminal Code. Procurement offences relate to the act of persuading or forcing another individual to become a prostitute. This would encompass a variety of situations. For example, offences related to human trafficking (bringing people into Canada to work as prostitutes, or selling human beings for consideration) would be caught under this provision. Situations where an employer requires or attempts to require his or her employee to have sexual relations with a client or business partner would also fall under the category of procurement. Finally, any act by which one individual entices, controls, persuades or influences another person to engage in prostitution would be an offence under the procurement legislation.

Purchasing or procuring the sexual services of an individual under the age of eighteen is also a serious offence in Canada. Issues dealing with minors are explicitly dealt with in section 212(4). This section states that every person who, in any place, purchases the sexual services of a person who is under the age of eighteen is guilty of an indictable offence and liable to a maximum of five years imprisonment. This offence also carries a mandatory minimum jail sentence of six months. The law is clear that exchanging money or any form of consideration for the sexual services of a person under the age of eighteen is a criminal offence. There are no special rules relating to public places or bawdy-houses; it is always illegal to purchase the services of a prostitute under the age of eighteen. Living off the proceeds of prostitution of a person who is under the age of eighteen carries a maximum sentence of fourteen years and a mandatory minimum sentence of two years. Moreover, the combined offences of living of the avails of prostitution of a person under the age of eighteen and procuring that individual to engage in prostitution through counseling, compulsion, threats, intimidation, or coercion carries a five year mandatory minimum sentence and a fourteen year maximum sentence.

In Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, the Supreme Court of Canada concluded that s. 213 does not violate the Canadian Charter of Rights and Freedoms. Though the Charter guarantees every individual freedom of expression, the Supreme Court held that the law against solicitation for the purposes of prostitution in a public place was a constitutionally justifiable limit on the right to freedom of speech. In the same decision, the court indicated that s. 213 does not breach a number of other Constitutional rights that were raised: including the s. 15 equality guarantee and the s. 7 right to “life, liberty and security of the person”.

Nonetheless, a group of Toronto criminal defence lawyers and sex workers are currently challenging the laws against prostitution in the Supreme Court of Canada. The applicants claim that the laws against keeping a common bawdy-house force them and thousands of women like them out of the safety of their homes and on to the streets where they are vulnerable to violence and abuse. They are arguing that by forcing them to work in situations where they are prone to physical and psychological violence the legislation violates their right to security of the person under s. 7 of the Charter. They are also arguing that the prohibition against soliciting for the purpose of prostitution infringes their right to freedom of expression under s. 2(b) of the Charter, by limiting their ability to communicate with others for the purpose of prostitution. However, the primary argument the team of lawyers and sex workers challenging the law are raising is that if prostitution was legal and properly regulated, prostitutes would be safer.

Recent events such as the case of serial killer Robert Pickton, known colloquially as the “pig farmer”, have drawn public attention to the issues and dangers facing prostitutes and sex workers in Canada. Pickton was convicted of murdering six women and accused of murdering many more at his farm in northern British Columbia. He was said to pray on prostitutes and drug users from Vancouver’s downtown eastside who he considered easy targets. However, the Pickton case is just one egregious example of the violence inflicted on prostitutes forced to work on the street with little supervision or protection. Between 1991 and 2005, there were 116 known prostitution-related murders in Canada. Rape and assault are also common dangers faced by prostitutes. However, there are arguments on both sides, and the Attorney General’s office argues that the legalization of solicitation for the purpose of prostitution and the keeping of a common bawdy-house would legitimize exploitation and proliferate the problems posed by prostitution, instead of keeping prostitutes safe.

The applicants in the current constitutional challenge have not suggested changing the laws relating to minors or the laws relating to procurement. Thus, the only form of prostitution that will be legal if the challenge is successful is the freely chosen and consensual selling of sex by individuals over the age of eighteen. The constitutional challenge was heard by the Supreme Court in October of 2009 and a decision is expected some point later this year. 

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

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.

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.

]]> http://blog.torontodefencelawyers.com/2010/02/lawyer-vs-paralegal/feed/ 0 http://blog.torontodefencelawyers.com/2009/12/emigration-us-repercussions-of-a-criminal-conviction/ http://blog.torontodefencelawyers.com/2009/12/emigration-us-repercussions-of-a-criminal-conviction/#comments Tue, 01 Dec 2009 15:00:58 +0000 TDL http://blog.torontodefencelawyers.com/?p=74 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.

The bad news is that there is no exact universally-accepted definition of the phrase “beyond a reasonable doubt”. Judges and legal scholars (also known as “jurists”) have been writing for centuries on the best way to explain exactly what the court means when they speak of a reasonable doubt. Individuals tend to “have a feeling” of what reasonable doubt is, but often find it very hard to articulate what the phrase means in the context of a trial. In R. v. Lifchus, the Supreme Court of Canada (“SCC”) stated that, in the context of a trial, the phrase “beyond a reasonable doubt” has a specific legal meaning which should not be confused with its ordinary every-day meaning. Thus, our understanding of reasonable doubt must be much clearer than a mere “feeling”; we must be able to articulate a definition of reasonable doubt so that the concept is applied in the same way by all judges and jurors. The good news is that a number of legal decisions have articulated to a much more precise definition of this important legal term.

Much of the debate over the meaning of the phrase “beyond a reasonable doubt” has evolved out of appellate decisions both in the provincial Courts of Appeal and in the Supreme Court of Canada. That is because the adequacy of a judge’s explanation to the jury as to the definition of “beyond a reasonable doubt” is an issue that often arises on appeal. In cases which are heard by a judge and jury, the judge must “charge” (i.e., instruct) the jury on points of law before the jury is sequestered to reach a verdict. One of the points of law upon which a trial judge must instruct the jury, is the meaning of the phrase “beyond a reasonable doubt”. Sometimes, the Crown or Defence may argue on appeal that the trial judge’s charge to the jury on this issue misled the jury as to the burden of proof, and that such error resulted in a miscarriage of justice. For example, in Lifchus, the judge instructed the jury to think of the concept of “reasonable doubt” in the ordinary everyday sense of the word. On appeal, the SCC concluded that this instruction misled the jury, and that instead the judge should have instructed them on the precise legal meaning of “reasonable doubt”. Appeals such as the Lifchus case provide further direction to trial judges on the meaning of the phrase “beyond a reasonable doubt”. These legal opinions lead us to a clearer understanding of the term.

The standard “beyond a reasonable doubt” requires more than a hunch that the accused committed the crime but less than absolute certainty. In the landmark case, Woolmington, the House of Lords (the highest court of appeal in England) described the standard as 75 to 99% certainty. Years later in the case R. v. W. (D.) the SCC had the opportunity to comment on the meaning of reasonable doubt. In W. (D.) the SCC considered the relationship between reasonable doubt and the case built by the defence. They concluded that the jury need not believe all of the defendant’s evidence to find that there is reasonable doubt as to his or her guilt. There is a danger that the jury will interpret reasonable doubt as coming down to an evaluation of who they believe more, the Crown or the accused. If the jury were to interpret the phrase that way, establishing “proof beyond a reasonable doubt” would require that the Crown do no more than built a case that is slightly more likely or slightly more credible than the defense’s case. In W. (D.) the SCC points out that this type of reasoning “excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonable doubt as to the accused’s guilt”. This could happen in situations where – despite the accused’s lack of credibility – the Crown case is simply too weak to support a finding of guilt. W. (D.) tells us a little more about the meaning of the phrase “beyond a reasonable doubt”, by explaining that if the jury (i) believes the accused’s evidence or (ii) does not believe the accused evidence but nonetheless is left in a state of reasonable doubt as to the accused’s guilt after considering his evidence in the context of the evidence as a whole, they must acquit.

During a trial, the burden of proof is on the Crown to prove that the accused committed the crime beyond a reasonable doubt. The Crown must establish all the elements of the offence beyond a reasonable doubt. For example, if the offence alleged is “assault causing bodily harm” the Crown would have to prove not only that an assault took place beyond a reasonable doubt, but also that the injuries inflicted during the assault meet the legal definition of “bodily harm” beyond a reasonable doubt. (Of course, an accused could be convicted of the included offence of assault.) Moreover, the Crown must also prove that the accused had the mens rea (or “guilty mind”) required to commit the offence beyond a reasonable doubt. For example, if the offence is assault, the Crown would have to prove that the accused intended to assault the victim beyond a reasonable doubt.

The high burden of proof placed on the Crown is a reflection of the presumption of innocence — the “golden thread that runs through the criminal law”. If the state does not discharge its duty and prove that the accused is guilty beyond a reasonable doubt, the presumption of innocence remains intact and the defendant must be acquitted.

This controversial decision was not made without hesitation on the part of the defence bar. Rather, it has been about a decade in the making. Over the past ten years, Crown Attorneys have seen a 57 % pay raise while defence lawyers acting through legal aid certificates have experienced only a 15% hourly wage increase over the last five years following more than a fifteen years of cutbacks and wage decreases. Though these wage discrepancies are a factor in the strike, the gross salary received by defence lawyers for taking legal aid cases is only a minor element of the funding problems that have motivated this decision.

One of the greatest misconceptions about the strike is that the motivation behind it is greed on the part of the defence bar. This misconception is fuelled by a misunderstanding of the $77 – $98 hourly rate currently paid by legal aid to defence lawyers. It is understandable that members of the public would consider this to be a very high rate of pay. However, that conclusion is based on confusion about how defence lawyers allocate their hourly rate. Most people only have to deduct taxes from their hourly wage and the rest of the wage is retained for personal expenses. It is only natural to assume that the same goes for a criminal defence lawyer’s hourly wage. However, because of the way the practice of criminal defence is structured, most defence lawyers must use their hourly wage to cover all overhead and office costs. This means that, in addition to taxes, a lawyer must deduct from their hourly wage things such as:

• licensing and insurance fees;
• the cost of renting and maintaining their office space;
• all capitol costs for items such as computers, printers, fax machines, and office furniture;
• internet and phone accounts for their offices;
• the salaries ofr support staff such as secretaries, paralegals, and articling students;
• etc.

Once these deductions are considered, according to Frank Addario, president of Ontario’s Criminal Lawyers Association, the hourly rate paid by Legal Aid is actually “much closer to minimum wage”. To make matters worse, Legal Aid caps the number of hours a lawyer can bill per case. As a result, for a complex case which requires months of preparation, defence counsel may end up working hundreds of hours at no pay whatsoever. Some lawyers estimate that once these hours are factored in, lawyers often make less than minimum wage when they are working on complex Legal Aid cases.

Not wanting to withdraw their services entirely and leave the Legal Aid Program stranded, senior defence lawyers have chosen to focus the strike on homicide, gun and gang related charges. These tend to be the most complex cases that pass through the criminal justice system. They also tend to be the most glaring examples of how underpaid Legal Aid work can be, as these cases often require that lawyers work far beyond the Legal Aid cap. Moreover, these cases involve the use of expert witnesses, diagrams, models and other tactical aids — all of which must be commissioned and paid for out of the lawyer’s hourly wage. In addition, we hope that focusing on these types of cases will highlight the impact Legal Aid funding has on the quality of our criminal justice system. It has been suggested by many experts that the current inefficiency of our system, especially evident in the Greater Toronto Area, is a result of inexperienced counsel handling complex charges such as homicide, gun charges and gang-related charges. Through no fault of their own, junior lawyers often need more time to prepare for these types of cases and inadvertently cause more delays throughout the trial process. We hope to highlight this problem so that the government will be forced to increase funding and put these cases back in the hands of senior lawyers. Of course, these cases also get the most media attention, so we hope that by focusing the strike on these types of charges, public pressure will compel the government to consider our position and increase funding to Legal Aid.

In the end, it is the public’s best interest that funding to the Legal Aid program is significantly increased as soon as possible. We must have a criminal justice system where it is primarily senior counsels who handle the most serious charges. For one, this will increase the efficiency of the system. Even those facing minor charges will benefit by having their matters dealt with in a more timely fashion than is currently possible. More importantly, individuals charged with serious crimes face significant jail time, and accordingly they should have access to the best lawyers the defence bar can offer.

Prior to the strike, senior defence lawyers were taking on as many serious legal aid cases as possible within the constraints of salary and time. In fact, according to Addario, up until now defence lawyers have been “making the system work through donated services”. However, at the end of the day, like everyone else, there is only so much that lawyers can do for free, and the number of serious Legal Aid cases far outweighs the amount of time that can reasonably be “donated” by senior counsel. In our experience, almost every criminal defence lawyer goes into this profession with a desire to help people regardless of their economic situation. The number of Legal Aid cases accepted by senior counsel is a testament to this fact. However, there is a growing consensus in the profession that, at this point, the best way to help individuals who use the Legal Aid program is to withdraw some of our services temporarily with an aim of improving the system as a whole.

This strike is not only about increasing the hourly wage paid by Legal Aid so that individuals charged with serious offences can benefit from having access to the most experienced counsel possible. This strike also aims to increase overall funding to the Legal Aid System. It is important to remember that the government funds both the Crown Attorney’s Office and Legal Aid Services, yet there is a notable discrepancy as to the resources allocated to each side. For example, because of budget constraints, Legal Aid is only able to pay expert witnesses half of what they are paid by the Crown. As a result, the Crown has broader access to the most knowledgeable experts in any given field. Moreover, defence lawyers must apply to Legal Aid to have each expert approved, whereas the Crown has the resources to call as many expert witnesses as they deem necessary. The hours defence experts are paid are also capped, so that often defence experts, just like defence lawyers, end up working many hours for free in preparation for a trial. The problem surrounding the use of expert witnesses is just one of the many compelling examples which show that increased funding to Legal Aid is needed.

There is already a huge power imbalance between the state and the individual in the context of investigating a crime. Obviously, an accused person does not have access to a fraction of the resources the state may use to investigate a crime and collect evidence. In theory, the presumption of innocence counteracts this imbalance by placing a higher burden of proof on the state. However, the current deficiencies in the Legal Aid System work to carry the power imbalance between the state and the accused into the courtroom. We are left with a court system in which the Crown’s ability to prosecute far surpasses the lower-income accused’s ability to defend him or herself, both in terms of the tactics he or she may make use of (such as the use of expert witnesses) and in terms of the experience of his or her counsel. In Canada we pride ourselves on our universal health care system and yet we ignore the fact that, in many ways, we are operating within a two-tiered justice system where the rich have access to a much stronger and more effective defence than the poor. This means that income is rapidly becoming a silent factor in determining guilt or innocence. As such, defence lawyers across the province have initiated this strike to restore balance to the criminal justice system. The defence bar is disheartened by the growing gap between rich and poor defendants. Up until now, we have worked together, logging countless pro bono hours, to try and narrow that gap. However, the problem is too big for us to solve on our own. Regretfully, we find that the best course of action now is to stand back a little so that Parliament can see how serious the problem has become. Only they have the resources to fill the gap and give all Canadians equal access to justice.