Toronto Criminal Lawyers Blog

If a guilty plea is entered or if a person is convicted after trial, the focus of the Court shifts to sentencing. If you are entering a guilty plea it is vital that you contact counsel so that all the factors which affect the nature of the sentence may be canvassed.  Unique background factors can influence the type and/or length of sentence a conviction attracts. In R v Gladue (1999) the Supreme Court of Canada dramatically changed the way aboriginals are sentenced and detained. In that case the Court interpreted section 781.2(e) of the Canadian Criminal Code which provides,
All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
The interpretation was an attempt to remedy the courts’ over-reliance on incarceration as a response to criminal activity by First Nations individuals. After canvassing numerous studies, commissions and reports on Aboriginal people and the criminal justice system, the Court concluded:  
These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it.  The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system.  The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.  It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree.  The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process. (para 64) 
When a defendant has aboriginal lineage the court is required to conduct a background assessment and consider alternative sanctions- This is known as the Gladue approach to sentencing, and occur in special Gladue courts. In fact, all judges in all courts are duty bound to consider the implications of the Gladue decision prior to sentencing an aboriginal defendant: The court must consider the following;  
1. The unique systemic and background factors which played a part in bringing that particular aboriginal before the courts; and,
 
2. The types of sentencing procedures and sanctions which may be appropriate in the circumstances because of the defendant’s Aboriginal heritage or connection.
The Gladue approach does not apply to the whole trial process.  It applies at bail hearings before the trial, and again at sentencing after conviction. The trial process of an aboriginal offender does not differ in any respect from the trial process of a non-aboriginal offender- The same rules of evidence apply. The degree of aboriginal influence necessary to warrant the Gladue approach will vary from person to person. Residence or connection to a reserve is not a requirement.  In some circumstances the Galdue approach will be used when a defendant was not aware of his aboriginal heritage. This is because “aboriginal community” must be defined broadly to include any network of support and interaction that may be available, including in an urban centre. Residence in an urban centre lacking support does not remove the court’s obligation to consider alternative punishment other than incarceration.  
The first step in the Gladue approach is an assessment of the defendant’s background and community experiences, known as a Gladue report. Statistically, the aboriginal community has a greater incidence of poverty, discrimination, family dislocation, sexual abuse, domestic abuse and addiction.  These experiences play a major role in the disproportionate representation of aboriginals in prison. At this stage the court is interested in determining whether the accused has suffered as a result of systemic or direct discrimination. It is not necessary that the accused themselves suffer discrimination provided they have suffered its effects.  For example, aboriginal children may live in poverty as a result of discrimination or addiction suffered by their parent(s). In order to aid the court in their assessment the accused will be required to supply information relating to 
• Personal history (address, employment, education)
• Circumstances leading up to the offence
• Their family home experience
• Their parents history
• How they are supported financially
This is not an exhaustive list. The accused may be asked very personal questions relating to the types of schools he/she attended, his/her experience with adoption and child welfare as well as his/her experience with abuse, addiction and mental illness. 
After the court has identified the particular background factors affecting the defendant, they will then consider alternatives to incarceration. For example, substance abuse programs and/or counseling programs can be used to replace of a custodial sentence. The Gladue sentencing approach may be used to lessen a sentence in circumstances where the nature of the offence requires that a custodial sentence is served.  It is important to tell counsel about all possible programs as well as their dates, locations and entry requirements. The court will consider all possible programs both inside and outside the aboriginal community. Aboriginal descent does not create an automatic sentence reduction. The courts goal is to expand the use of restorative justice measures and to reduce the overrepresentation of aboriginals in prisons. This different approach to sentencing does not always mean that the ultimate result is different result.  
The more serious the crime, the more likely the sentences of aboriginal and non-aboriginal offenders will coincide.

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.

The police may approach you for questioning in a variety of situations. You may be walking down the street, hanging out at school or even driving in your car. It is important to know when the police can lawfully detain you for questioning. Section 9 of the Charter of Right and Freedoms protects your right to be from arbitrary detention.

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.

Bill C-55, which came into force on August 1^st, 1997, made significant changes to Canada’s Dangerous Offender legislation. This legislation allows the government of Canada to detain indefinitely those offenders found by the court to qualify as “dangerous”. The 1997 reforms made it much easier for the Crown Attorney’s Office to secure a dangerous offender designation. At the same time, Bill C-55 introduced a new legislative designation known as the Long Term Offender Designation.  This designation gave Crown Attorneys a more moderate option for dealing with the special concerns raised by long term offenders without resorting to the serious measures imposed by a dangerous offender designation. This also gave criminal defence lawyers an alternative option to suggest to the court as a compromise to avoid dangerous offender designations in the most serious of cases. In the majority of cases, however, criminal defence lawyers will do their upmost to avoid both dangerous offender and long term offender designations for their clients.

The long-term offender designation may only be made following the individual’s conviction for a serious personal injury offence. The term “serious personal injury offence” is defined in s. 752 of the Code as an offence that endangers, or could potentially endanger, another person’s life, safety, or psychological well-being. This category would include aggravated assault, sexual assault, aggravated sexual assault, sexual assault with a weapon, or sexual assault of a minor. The Crown may apply for a long-term offender designation after an individual is found guilty of a personal injury offence but before he or she is sentenced. In addition, according to s. 753(5) of the Criminal Code of Canada, if an application for dangerous offender designation is denied, the court may consider imposing a long term offender designation at that time (in the alternative, they may choose to impose a traditional determinate sentence). A dangerous offender application made be made up to six months following the sentencing of an individual for a serious personal injury crime.

Though long term offenders cannot be given indeterminate sentences as dangerous offenders are, the designation requires that the individual be under long-term supervision and allows the court to return the individual to prison following their release if certain conditions are not met. Section 753.1(3) creates a sentencing regime for long-term offender. Upon designating an individual a long-term offender, the court must impose a sentence for the offence for which the offender has been convicted of a minimum of two years duration and order that the offender be subject to long-term community supervision for up to ten years after his or her release. If the long-term offender breaks his or her order of supervision, he or she will be liable to a term of imprisonment not exceeding ten years.

Section 753.1(1) lists the requirements for a long-term offender designation. The Crown must prove all of the following requirements before the court will designate the individual a long-term offender:

• A sentence of two years or more would be appropriate for the crime committed,
• The offender is likely to reoffend, and
• There is a “reasonable possibility of eventual control of the risk to the community”.

Likelihood to reoffend is assumed pursuant to s. 753.1(2) for all those offenders who are convicted of an offence of a sexual nature or offenders whose records disclose a pattern of violent behaviour.

An application for long-term offender designation must be approved by the Attorney General of the province. The offender is given seven days notice of the application during which the offender and his or her criminal defence lawyer must prepare a defence to the allegation that the individual is a long-term offender. The application will be determined in a special proceeding heard by judge alone without a jury. Character evidence, usually excluded at trial because of its inherent unreliability, is allowed if the court deems it relevant to establishing whether or not the individual qualifies as a long-term offender. Under section 758, the accused must be present at the hearing unless exceptional circumstances make his or her attendance impossible (for example, the accused may be expelled from the courtroom because of violent or uncontrollable behaviour). The accused individual and his or her criminal defence lawyer will have the opportunity to defend against the charge that the accused should be labeled a long-term offender. If found to be a long-term offender, the accused may appeal his designation pursuant to s. 759 of the Code.

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This guest post is contributed by Stephanie DiGiuseppe. She can be reached at stephaniedigiuseppe@gmail.com.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

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.

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.