Toronto Criminal Lawyers Blog

There are two essential stages to any challenge under the Canadian Charter of Rights and Freedoms. In the first stage, the claimant, working with his or her criminal defence lawyer, must show that it is more likely than not that his or her Charter rights were breached. In the second step the burden of proof switches to the Crown, and the Crown must show that it is more likely than not that the breach was justified under s.1 of the Charter.

Section 1 of the Charter limits all of the other rights in the Charter. It states that “[t]he 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.” If the government passes a law that breaches the constitution, they can invoke s. 1 to argue that the breach is nonetheless justified in a free and democratic society.

Section 1 contains two requirements that the government must satisfy to show that the Charter breach is justified. In the first step the government must show that the breach is “prescribed by law”. This is a normally straightforward threshold criterion that basically requires that the limit have the “form of law”. In essence, it serves a gatekeeper function, limiting the number of instances where an infringement can be upheld. To be “prescribed by law”, the rule must be accessible and intelligible to the citizen. Both values fall under the more general concept of notice: to be “prescribed by law” the rule must be promulgated. In R. v. Therens, the Supreme Court of Canada explained what is meant by the requirement that the rule be “promulgated”; the rule will be “promulgated” and thus “prescribed by law” within the meaning of s. 1, if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from the application of a common law rule.

To be prescribed by law, the law must be “intelligible”, which means that citizens must be able to understand the effects of the law, including the nature of the behaviour which would constitute a breach of the law. This means that the law cannot be overly vague. However, courts have preferred to deal with the claim that a restriction is too vague or too broad at stage 2 of the s. 1 inquiry. In Osborne v. Canada (Treasury Board), the Supreme Court explained that vagueness has s. 1 significance in two ways: (1) a law may be so uncertain as to be incapable of being interpreted so as to constitute any restrain on government power. In these circumstances there is no “limit prescribed by law” and no s. 1 analysis is necessary because the threshold has not been met and (2) a law which passes the threshold test may, nevertheless, by reasons of imprecision, not qualify as a reasonable limit. This concept will arise under part two of the test.

At stage 2 the government must justify that the breach is “reasonable” and “demonstrably justified in a free and democratic society”. In 1986 in R. v. Oakes the Supreme Court of Canada formulated a test that the government must follow to prove that this requirement is met. At the first step of the Oakes Test, the government must show that there was a “pressing and substantial purpose” behind the law. In other words, the objective of the law must be of sufficient importance considering that the law has the effect of limiting an individual’s Charter rights. Though the court has said that the standard at this first step must be high to ensure that trivial objectives are not protected, in practice, the court rarely finds that the restriction fails the first step.

The second step of the Oakes test is a proportionality test. This step has three substeps – all of which the government must address. First, the government must show that the law was carefully designed to achieve the objective identified in step 1 of the Oakes test. The law must be fair and not arbitrary. The limit it imposes must be “rationally connected” to its objective.  For example, if the government were to make a law against visiting South America, and then identify their objective as “protecting endangered species”, the court would likely find that the law was not rationally connected to its purpose since visiting South America has little to do with the general goal of protecting endangered species. Though the purpose of protecting endangered species would likely be considered “pressing and substantial” under part 1 of Oakes, the law against visiting South America would not be a clear and effective way of protecting that objective. At the second sub- stage of the proportionality test, the government must show that the law is minimally impairing. In other words, the law must be designed to limit the rights and freedoms of Canadians as little as reasonably possible. The law against visiting South America in our example from before would also fail at this stage of Oakes. There are other ways to protect endangered species that limit individual freedom much less than the law proposed in this example. For example, the government could ban imports of goods made using endangered species. Thus, the law against visiting South America would be seen as much to harsh, impairing, or limiting. At the final substep of the proportionality test the government must show that there is proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. Even if the government establishes that there is an important objective, the severity of the limit may be so great as to outweigh the benefit. This test operates on a sliding scale; the more severe the deleterious effects of the measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. In our South America example, it would be clear that the law was extremely limiting on people’s freedom, yet the degree to which it accomplished the purpose of protecting endangered species was small (people, other than Canadians, could still harm endangered species in South America). The law would be seen as disproportionately harsh compared any benefit it could be expected to create.

Know your rights. Contact Kostman and Pyzer, Barristers, if you need a Toronto criminal lawyer or are charged with a criminal offence.

Most people know that for an individual to be convicted of a criminal offence, the Crown must prove his or her guilt “beyond a reasonable doubt”. At the same time, people are often confused over the exact meaning of the phrase “beyond a reasonable doubt”. In a criminal trial, the verdict rests on the meaning of these words.

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.

On June 1^st, 2001 senior Toronto lawyers ( Toronto lawyers with ten years or more of experience) made headlines earlier this week when they voted to stop accepting legal aid cases dealing with homicide, gun, or gang related charges in Toronto. It is not the intention of the Toronto criminal defence bar that this decision be permanent. Rather, senior Toronto criminal lawyers are calling this a strike designed to call attention to the government’s serious underfunding of the Legal Aid program.

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.

When one of our clients is accused of a crime and taken into custody, our first responsibility as criminal defence lawyers is to help that client get out on bail. A justice of the peace (JP) will usually decide whether or not to let an accused person out on bail through a bail hearing. The bail hearing is conducted in a criminal court house. At the bail hearing the JP will assess whether the accused should be let out on bail by considering three criteria:

1. 1. If released, is the accused likely to appear in court or is he/she a “flight risk”?
2. 2. If released, is the accused a danger to the community, the complainant or his or herself? 
3. 3. Is it contrary to the public interest that the accused is released? Would a decision to release the accused on bail “shock the community”? (This is often an issue with usual or violent crimes that get a lot of media attention).

If consideration of these three criteria suggests that it would be ok to release the accused, the JP can grant bail and is free to impose any conditions he or she sees fit. Some examples of conditions which may accompany bail are:

1.  
   • a curfew, 
   • a duty to remain in a specific geographical area,
   • a duty to report to the police at regular time intervals, 
   • a duty to seek counseling or other forms of treatment, 
   • a duty to reside at a specific address, 
   • a condition that the accused not possess any weapons, 
   • a condition that the accused refrain from drinking alcohol, 
   • or a condition prohibiting the accused from communicating with the victim.

These conditions will be spelled out in a court order granting bail commonly referred to as a recognizance. 

Often, a JP will be more likely to release an accused on bail if another individual (either a friend or family member of the accused) agrees to sign the bail and act as a surety. A surety takes responsibility for the accused and promises that court that the accused will comply with certain conditions when released from custody. If the judge decides to assign bail, the surety will have to sign the recognizance. It is the surety’s responsibility to make sure that the accused person complies with the conditions in the recognizance and attends all court appearances. If the accused fails to meet these obligations, the surety may have to forfeit an amount of money specified in the recognizance. 

Who Can Sign Bail?

Not just anyone can act as a surety. There are several requirements an individual must meet to qualify as a surety:

•  
  • ¥ The surety must not be involved with the charge (i.e., a complainant or co-accused cannot act as surety)
  • ¥ The surety must be 21 years of age or older
  • ¥ The surety cannot have a criminal record
  • ¥ The surety must be a Canadian citizen or landed immigrant
  • ¥ The surety cannot be an employee of the accused person
  • ¥ The surety must be employed (with some exceptions)

In addition to these requirements, the JP must be satisfied that the surety is able to pay the amount of bail set out in the recognizance should the accused fail to comply with the terms of the bail. Sometimes the surety will be asked to deposit the amount of the bail at the time the accused is released and will have the money returned if the accused complies with the recognizance. More often, the surety must simply show using bank statements, RRSPs, savings bonds, etc. that he or she is able to pay the amount of the bail if necessary. In the end, the JP will decide if an individual qualifies as a surety and has discretion to waive some of the requirements listed above in special circumstances. The JP will also consider the character of the surety and their overall impression of how responsible and trustworthy the surety appears to be. During the bail hearing, the potential surety may have to give evidence or answer questions about their qualifications to act as a surety. It is very important to note that it is against the law accept payment for acting as a surety.

Duties of a Surety

The main duty of a surety is to supervise the accused person after they are released back into the community and ensure that the accused follows all of the terms and conditions of his or her recognizance. Another important duty of a surety is to make sure that the accused attends at all their assigned court dates. As an acting surety, you are also obliged to ensure that the accused does not commit any criminal offences after they are released on bail. If, at any point during your obligation as surety, it comes to your attention that the accused person has or is about to break a condition of his or her bail you are obliged to notify the police. These responsibilities begin at the bail hearing when the surety signs the recognizance and do not end until the accused’s case is completely over. In some cases, this can take a very long time (even several years), so an individual should not take the decision to become a surety lightly. If you are considering acting as a surety, we suggest that you obtain independent legal advice from a criminal defence lawyer before making such a commitment. 

If you do decide to act as a surety, and at some point during the course of your duties you find that you are no longer willing or able to act as a surety, there are steps you can take to relieve yourself from the obligation to act as surety. You can bring the accused person to court personally and ask that they relieve you from your obligation. Another option is to come to the court alone and apply in writing to be relieved of your obligation. In both cases, the accused will be rearrested should you decide to stop acting as their surety. If you believe that the accused person is a threat to your safety in any way, we recommend that you apply in writing to end your obligation as surety and do not attempt to bring the individual personally to court.

Forfeiting Bail

If you decide to act as a surety you may be forced to forfeit the bail amount specified in the recognizance. If the accused fails to appear for a court date or fails to comply with a condition specified in the recognizance, the Crown may ask that the court direct you to pay the money you committed as bail for the accused. If the Crown makes such a request, a hearing will be scheduled. This type of hearing is referred to as an estreatment. During the estreatment, you will have an opportunity to tell the court your side of the story and explain why you should not have to forfeit the amount of the bail. In the end, the JP will order that you pay all, none or part of the bail amount. If this happens, the accused will likely be returned into custody, and your obligations as a surety will end. 

In our criminal justice system, every individual is presumed innocent until proven guilty. When an individual is facing criminal charges, until he/she is proven guilty, he/she should not be denied his/her freedom unless there is a good reason for doing so. By acting as a surety for an accused person, you play an important role in the criminal process and you help a friend or family member during through a very difficult period in their lives. That said, it is a significant responsibility and you should be fully informed before pledging to act as a surety. If you have any questions about acting as a surety, contact one of the criminal defence lawyers at our office by calling 416-658-1818.