Toronto Criminal Lawyers Blog

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.

Under Canadian law it is illegal to drive when impaired. Usually when we hear about impaired driving in the media, the focus is on drinking and driving. However, it is also illegal to drive while under the influence of drugs. This law applies both to illegal drugs and to prescription drugs which affect the user’s ability to drive.

The focus is not on the legal status of the drug, but on its effects. Drugs that impair depth perception, attention span, concentration, decision-making, and reaction time are all considered to be “impairing”. This would include street drugs such as cocaine and marijuana and also a wide variety of prescription drugs such as morphine, oxycodone, valium and other painkillers. Obviously, drugs that cause hallucinations, distort the user’s perception of time and distance, cause confusion or make it hard to distinguish between fantasy and reality are extremely impairing. This would include a variety of hallucinogenic street drugs such as magic mushrooms, LSD, acid, and also amphetamines such as ecstasy, crystal meth, methylenedioxymethamphetamine (MDMA), dexamphetamine.

If a driver is stopped by a roadside spot check (such as Toronto’s RIDE program) or spotted driving erratically by the police, and the police suspect that he or she is currently impaired by drugs, they will investigate. The police have many resources available to them to test whether an individual is driving under the influence of drugs.

If the police officer has a reasonable suspicion that a suspect is impaired by drugs, he or she may administer a Standardized Field Sobriety Test (SFST). This SFST consists of a series of three tests. The first test is known as the “horizontal gaze nystagmus test”. “Horizontal gaze mystagmus” is the technical terms for the natural involuntary jerking of the eyeball that occurs as the eyes gaze to the side. When an individual is impaired, this jerking becomes exaggerated and occurs earlier. The officer will likely ask the suspect to watch his hand as he moves it from side to side to see if your eyes react abnormally. Moreover, individuals impaired by drugs have difficulty concentrating on a moving object, and so this is also a factor the officer will look for when applying the first test.

The second and third tests in the SFST are known as “divided attention tests”. These test require that the suspect listen and follow instructions while performing simple physical movements. The first is the walk and turn test. The suspect will be instructed to walk nine steps, heel to toe, along a straight line, and then turn on one leg and walk back. The second test is the one leg stand where the suspect is asked to stand on one leg with the other foot about six feet off the ground and count by thousands (“one thousand, two thousand, etc.). Though these tasks would be extremely easy for a sober person to perform, an impaired individual will often have trouble performing these tasks. Impaired individuals often have trouble performing tasks that require them to pay attention to instruction, perform simple mental actions (such as counting in thousands) or performing simple physical acts (such as balancing on one foot). During the “walk and turn test” the officer will watch for seven factors: if the suspect has trouble balancing while listening to the instructions, begins before the instructions are finished, stops while walking to regain his or her balance, does not touch heel-to-toe, uses his or her arms to balance, loses his or her balance while turning, or takes an incorrect number of steps, these will be considered signs of impairment. During the “one leg stand”, the officer will watch to see if the individual has trouble balancing on one foot. If the suspect sways, uses his or her arms for balance, hops on one foot to maintain his or her balance, or looses his or her balance, the officer will view that as a sign of impairment.

The SFSTs are entirely voluntary in every Canadian province except Quebec. In Toronto and the rest of Ontario you are not legally obliged to comply with the SFSTs. There are a variety of reasons why you should not comply with these tests. Though the tests have been studied and shown to be 60-80% accurate when performed properly in ideal conditions, criminal defence lawyers know from experience that, in practice, these test are almost always performed incorrectly in conditions that skew the results. For example, if a suspect is asked to perform these tests on an incline or if the ground is wet, this may interfere with the quality of the results. Moreover, police officers often give poor instructions, causing suspects to misunderstand and subsequently fail the test. Moreover, these skewed results can be used to detain the suspect and transport him or her to the police station for further testing.

If the suspect is detained and taken to the police station, he or she will be evaluated by a Drug Recognition Expert (DRE). If the drug recognition expert is able to evaluate the individual and determine that a specific family of drugs caused the suspect to be impaired, the suspect will be forced to submit to a saliva, urine or blood test. This will be tested for drugs to determine whether or not the individual is impaired.

The new testing regime described above, most notably the mandatory fluid samples, is a relatively new process in Ontario law. It was introduced in July 2008 under Bill C-2: the Tackling Violent Crime Act. There are many reasons why criminal defence lawyers feel that this new legislation is unlikely to be effective. First, unlike alcohol impairment, which is quite obvious, individuals under the influence of marijuana and other similar drugs display few obvious signs of impairment. Though individuals on amphetamines and opiates may display more symptoms of impairment there is very little evidence that these drugs are actually linked to car accidents in any significant way. It seems that most people voluntarily refrain from driving while under the influence of these drugs. Thus, it will be hard to officers to identify correctly suspects to undergo this new process. Second, there is very little evidence that saliva or urine tests provide any accurate information about levels of drugs in the body. The technology for saliva testing of THC (the active drug in marijuana) levels is rudimentary at best. Moreover, urine testing only tells us if the suspect has consumed drugs in the recent past (30 days for marijuana); however, it cannot conclusively link the ingestion of the drug with the time of driving. Only a blood plasma test has the ability to show current levels of drugs in the body. However, since up until now Canadian law has espoused a zero tolerance policy with respect to drugs, there is very little research indicating what levels of each drug in the blood actually leads to “impairment”. Since impairment is a necessary component of the offence of “driving while impaired”, this is an important deficiency in the law. Finally, since a blood test is an invasive procedure and because our law recognizes that individual’s have the right to protect their bodily integrity and make important decisions about their body, mandatory testing – which is unlikely to show conclusive results – it is almost certainly unconstitutional. If you are charged under the new regime, your criminal defence lawyer will certainly challenge the constitutionality of the test. Thus, it is very unlikely that the new process will lead to an increase in convictions of individuals driving while under the influence of drugs.

Recently, in the case of R. v. B., although the Drug Recognition Expert concluded that B was impaired by drug (most likely marijuana), a urine sample taken by the police definitely showed that there was no active drug in B’s bloodstream.

Usually a trial ends with a finding of either “guilty” or “not guilty”. However, sometimes the court will find an individual “not guilty by reason of mental disorder”. These individuals actually committed the acts they are accused of, but because of some sort of mental disorder are unable of possessing the “guilty mind” the law requires to find an individual guilty. Thus, they are deemed Not Criminally Responsible for their actions, or “NCR”.

Not every person with a mental illness will be able to raise a successful NCR defence. In fact, NCR defences are only available to individuals who have certain forms of mental illness. The requirements an individual must meet to raise a successful NCR defence are outlined in the Criminal Code of Canada.

According to the Criminal Code, every individual is presumed to be sane under the law, unless proven otherwise. In order to raise a successful NCR defence, one party to the trial must rebut that assumption by showing that the individual’s mental illness has all of the components required by statute to qualify the individual as NCR. The first requirement is the existence of a mental disorder. The second requirement is incapacity on one of two grounds as a result of that disorder.

The meaning of the phrase “existence of a mental disorder” has received a lot of attention from judges and legal scholars. A mental disorder is traditionally defined as a “disease of the mind”. According to the Supreme Court of Canada in the 1980 case Cooper v. The Queen, a “disease of the mind” is any illness, disorder or abnormal condition that impairs the human mind and its functioning. Thus, a disease of the mind is any medically recognized disorder, but does not include self-induced mental states (through drugs or alcohol) or transitory mental states (such as extreme anger which passes).

However, just because an individual possesses a “disease of the mind” does not mean they will necessarily be able to raise a successful NCR defence. In order for the defence to be successful, the court must find that one of two kinds of incapacity defined in the Criminal Code occurred as a result of the disorder and were present at the time of the event in question. The first form of incapacity is an inability to appreciate the nature and quality of the act. In order to understand the nature and quality of an act, an individual must be able to know what he or she is doing and understand the natural consequences of the act. It is not sufficient that the accused does not understand the legal consequences of the act or has an inappropriate emotional reaction to the event. Thus, for example, if the accused was to shoot someone, he could raise a successful defence of NCR if he did not know he was shooting a person or was unable to appreciate that shooting a person could result in that person’s death. However, if the accused simply did not believe that he could be arrested / punished for shooting another person or if he did not feel any guilt or remorse for shooting the person, he would not have a defence of NCR.

The second form of incapacity is that the accused is unable to appreciate that an act is morally wrong. According to the Supreme Court in R. v. Oomen, in order to be considered sane and therefore criminally responsible, the accused must have the capacity to know that the act is wrong according to the ordinary moral standards of a reasonable member of society. In other words, if the accused lacks the basic capacity to understand that society would consider their actions morally wrong, the NCR defence may be available to him. Thus, an individual diagnosed as a psychopath, who does not believe that murder is morally wrong but has the capacity to understand that society believes that murder is morally wrong would not be eligible for this defence. On the other hand, an individual diagnosed with schizophrenia who believes that the individual they killed is the devil and god instructed them to kill that devil, may be able to benefit from the NCR defence, because they believe that what they are doing is actually morally right.

When an individual is found to be Not Criminally Responsible and therefore not guilty by reason of mental disorder they are not necessarily released back into the general population. A Provincial Review Board comprised of experts in the area will review the verdict and determine whether the individual should be put into the NCR stream. Upon determining that an individual is NCR, the Board will decide what action should be taken in response to the individual’s actions. Since the individual is not considered morally to blame for their actions, the Board will try to make the least intrusive recommendation possible.  The Board may choose to grant an absolute discharge, a conditional discharge (psychiatric releases, not sentence dispositions), or may decide to detain the individual in a psychiatric hospital. If the individual is granted an absolute discharge they are free to go; However, all other dispositions require a mandatory review every 12 months by the Board. Individuals detained in psychiatric hospitals are given indeterminate sentences to be reviewed on a regular basis by the Board.

There are several pros and cons to an NCR defence. On one hand, individuals who are truly mentally ill are directed into institutions designed to deal with their medical conditions instead of being placed into the regular jail population. On the other hand, psychiatric hospitals are often overcrowded, under staffed, and unable to provide the proper treatment NCR individuals would benefit from in the long run. The NCR defence can be raised by the by a criminal defence lawyer, however it can also be raised by the Crown or by the court (i.e., by the judge), if any one of them believe the accused individual should be put in the NCR stream. Defence lawyers therefore can be called upon to argue either side of the NCR defence depending on what is in the best interest of their client.