Keyword Criminal Records: 14

Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees everyone the fundamental freedom of thought, belief, opinion and expression, including the freedom of the press and other media of communication. The purpose of this guarantee was defined by the Supreme Court of Canada in R v Keegstra.  The three core reasons the right to freedom of expression is important are;

1. 1) To ensure the free flow of ideas in a democratic society
2. 2) To ensure free debate in order to allow truth to prevail in the market place of ideas
3. 3) To ensure citizens’ ability to self realize through expression is not restricted

Any expression that furthers the aim of any of these three purposes will be aggressively protected by the Charter. The topics protesters seek to bring attention to are likely to fall under one of the three types of speech listed above. An expression includes any kind of activity that conveys, or attempts to convey meaning. All forms of expression, except for violence, are protected.  The expression of protesters at the G20 summit will only be protected by the Charter if the chosen form of expression is non-violent.  Protesters are not permitted to throw things at passers-by, assault people or damage property.  Protesters who choose to participate in violent forms of expression will not be protected by the charter.

In Reference re Public Service Relations Act, the Supreme Court of Canada stated that although the freedom on peaceful assembly is a separate and distinct right, it is closely related to the freedom of expression.  Sections 2 (c) of the Charter, guarantee everyone the fundamental freedoms of (c) peaceful assembly.  The right to assemble is recognized as a human right, a political freedom and a civil liberty. The freedom allows citizens to assemble in public places in the context of a protest. Gathering together in a large group for a peaceful protest is a protected Charter right.

However, neither of these guaranteed freedoms is absolute.  The limitation on all our rights is set out in Section 1 of the Charter which states; “

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The scope of a person’s right is limited by the rights of others. The rights of individuals to assemble and express must be balanced against the right of society to peacefully enjoy public places. Before taking the opportunity granted during summit, be sure you know the scope of your rights, and their limits.  For example section 63 (1) of the Criminal code states;

63. (1) An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

Lawful assembly becoming unlawful

(2) Persons who are lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in a manner that would have made the assembly unlawful if they had assembled in that manner for that purpose.

This section makes it a criminal offence for people to gathered together to conduct themselves in a way that will cause an atmosphere of violence. An atmosphere of violence can be created by yelling threats, charging or creating loud noises.  Protesters do not have to participate in violent behaviour themselves to cause an atmosphere of violence. Also, the fact a group of protesters intended to lawfully assemble for a peaceful assembly is irrelevant. It is made clear by section 63(2) that a lawful protest can turn into an unlawful protest if three or more people in the group conduct themselves in way that creates an atmosphere of violence.  Regardless of the reason you have gathered together downtown during the G20 you should refrain from yelling threats, charging or pushing others and throwing things. These types of acts are likely to cause a fear of violence in those around you. The freedom of expression guaranteed by the Charter is limited by the right of others not to walk the streets in fear.  Even spectators and innocent bystanders must behave during the G20.  Section 65 of the Criminal Code, states;

Everyone who takes part in a riot is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

This section makes it a criminal offence to participate in any conduct that will cause an atmosphere of violence. A riot is a disturbance of public peace that is disorderly, noisy, and turbulent.   When a spectator observes protesters throwing rocks, picks one up and joins in, they can be charged under section 65. A spectator can be charged under this section for participating in non-violent activity such as, marching or making loud noises, provided the groups conduct as a whole can be classified as a riot.

It is still a criminal offence to cause a disturbance when the nature of disturbance cannot be classified as a riot. According to the Canadian Criminal Code, causing a disturbance is a criminal offence. Section 175(1)(a) provides:

175. (1) Everyone who, not being in a dwelling-house, causes a disturbance in or near a public place,

(i) By fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

(ii) By being drunk, or

(iii) by impeding or molesting other persons,

is guilty of an offence punishable on summary conviction.

This section creates an offence that further limits the way protesters can lawfully express themselves. During the G20 summit the public’s ability to enjoy peace and tranquillity in public places will limit protesters ability to express their concerns.  A disturbance occurs when the ordinary peace and behaviour that can be expected in a location is disrupted.  When the crowd at the perimeter fence is calmly observing, protesters ought to refrain from trying to get the crowd rowdy. Encouraging others in the crowd to engage in violent behaviour and damage property will cause a disturbance. Protester should refrain from aggressive behaviours, such as yelling obscenities, which may entice those around them to participate in disruptive behaviour.  Peacefully protesting at the G20 summit is lawful and unlikely to cause a disturbance.  Protesters are encouraged to march, hold signs and banners, and sing songs. It is important to remember that your freedom to assemble and express yourselves is not absolute. There are limits on the forms of expression protesters can lawfully engage in. If you or anyone you know has been charged with an offence relating to the G20, contact Kostman and Pyzer to ensure your rights are protected.

]]> http://blog.torontodefencelawyers.com/2010/06/freedom-of-expression-limited-by-g20/feed/ 2 http://blog.torontodefencelawyers.com/2010/06/dangerous-driving-expressing-yourself-after-a-world-cup-win/ http://blog.torontodefencelawyers.com/2010/06/dangerous-driving-expressing-yourself-after-a-world-cup-win/#comments Mon, 28 Jun 2010 13:00:06 +0000 TDL http://blog.torontodefencelawyers.com/?p=127 The second part of our continuing look at the interaction between World Cup celebrations and the criminal justice system relates to driving motor vehicles. To recap, during the World Cup it is common to see people hanging off of cars, waving flags and honking their horns. It is important to exercise caution when you take that celebratory tour around town. The driver remains responsible for the care and control of the vehicle during World Cup. The driving rules are not suspended during the World Cup celebrations. The police have the authority to charge drivers caught driving dangerously or carelessly. Whether the police choose to lay a dangerous driving or careless driving charge will depend on the nature of the unlawful driving. The spectrum of unlawful driving ranges from the more serious, such as speeding through red lights, to the less serious, such as incomplete stops.  Are you wondering what kind of World Cup driving practices can lead to these kinds of charges? Before driving off with your flag hanging out of the car window, you should familiarize yourself with the dangerous driving and careless driving laws.  Under the Canadian Criminal Code “dangerous driving” is a criminal offence. According to section 249 of the Code:

249. (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

This section makes it an offence to drive a motor vehicle in a manner that is dangerous to the public. A conviction under this section results in a criminal record and an automatic 1 year driving suspension. This is a hybrid offence. The prosecutor has the discretion to proceed either by indictment or summarily depending on the actual driving. In practice, unless someone suffers significant bodily harm or the offender has a severe previous record for similar offences, the Prosecutor will elect to proceed summarily. If the prosecutor elects to proceed by way of indictment, the maximum punishment for the offence is five years imprisonment. The basis of liability for a dangerous driving charge is negligence.  That means the court is not concerned with whether the driver intended to drive dangerously but rather they are concerned with whether objectively the driver exercised a reasonable standard of care.

Dangerous Driving under the Criminal Code is a separate offence from Careless Driving under the Highway Traffic Act. According to section 130 of the Highway Traffic Act;

Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years

This is a Provincial offence. A conviction for careless driving will not result in a criminal record.  A careless driving conviction will result in demerit points, a minimum fine of $400 and increased insurance premiums.  A conviction can also lead to imprisonment for up to six months and a license suspension for up to two years. The standard of driving which will attract a careless driving charge is less severe than driving which attracts a dangerous driving charge. The Ontario Court of Appeal has stated that driving is deemed careless when it is seen as a “breach of the duty to the public and deserving of punishment”.  The Court will consider whether, in light of the circumstances, the driver failed to use care or failed to give others using the highway the consideration that an ordinary driver would have given.  “Highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between lateral property lines. The degree of care drivers are expected to exercise depends on the prevailing circumstances.

During the World Cup finals, the streets are filled with fans and passengers of motor vehicles enjoy hanging out windows with flags in hand.  Drivers will be expected to exercise caution in these circumstances in spite of the fact that their favourite team has won an important game. Drivers should ensure that passenger conduct does not inhibit their ability to exercise care when driving through fan filled streets.

In the spectrum of unlawful driving, where does the division between careless and dangerous driving fall? The Supreme Court of Canada interpreted the meaning of “dangerous” driving in R v Hundal [1993] S.C.J. No. 29. In that case the Court clarified three important points.  First, the level of negligence the prosecutor must prove to secure a conviction is “a marked departure from the standard of care that a reasonable driver would observe under the circumstances”.  The offensive driving must be so out of the ordinary that a reasonable person would consider the operation of the vehicle dangerous. Therefore, minor mistakes and accidents that could have happened to anyone exercising care, will not amount to dangerous driving. In practice, a dangerous driving charge is likely to be laid in circumstances where it appears that the driver was driving recklessly. If you are the driver of a vehicle celebrating a World Cup win you should refrain from hanging out the window as you drive, and be reminded that the ordinary traffic rules are still in force.  The bar may be somewhat lowered to allow for jubilant expression during the World Cup. However, where the celebration puts other motorists or passengers in the driver’s car at risk, a Court is likely to consider such conduct as a marked departure from that of a reasonable driver exercising care. In these circumstances, charges of Dangerous Driving under the Criminal Code, or Careless Driving under the Highway Traffic Act, may be laid.

In deciding whether “driving” is dangerous contrary to the Criminal Code, a Court will consider the nature of the location including, the driving conditions, the way the location is being used and any other prevalent factors. These considerations are particularly important for drivers trying to get through World Cup traffic. During game celebrations, especially during the finals, the streets are filled with cars, pedestrians, bicycles, motorcycles, etc.  Drivers are expected to exercise more caution when driving in these circumstances.  A dangerous driving charge is more likely to result in situations where the unlawful driving lead to serious consequences, such as serious injury or death. When the unlawful driving does not cause injury or death but nevertheless fall outside the scope of reasonable care, a careless driving charge is more likely. In the event of a charge of “dangerous driving” or “careless driving”, the accused can offer an explanation for his/her abnormal driving.  For example, the driver may have experienced a sudden onset of illness. In order to accept an explanation as a justification, the court must be satisfied that a reasonable person in the accused circumstances would have acted in a similar way. During World Cup season many passengers and drivers will be celebrated excitedly inside their moving vehicles.  The driver of a vehicle is responsible for the behaviour of their passengers, especially if it affects the driver’s ability to drive safely or puts their passengers at risk. Celebrate responsibly.  If you have been charged with Dangerous Driving or Careless Driving, contact Kostman and Pyzer, Barristers for the best defence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

1. The right to be informed without unreasonable delay of the specific offence you are being charged with;
2. The right to be tried within a reasonable time;
3. The right not to be compelled to be a witness in the proceedings against you;
4. The right to be presumed innocent until proven guilty in a court of law
5. The right not to be denied reasonable bail without just cause;
6. The right to be tried by jury for any offence where the maximum punishment is imprisonment for five years or more;
7. The right not to be found guilty on account of any act or omission unless that act or omission constituted an offence under Canadian or international law at the time the act was committed;
8. The right not to be tried again for an offence for which you have already either been acquitted or convicted and punished; and
9. The right to benefit from the lesser punishment in situations where the punishment for the offence has been varied between the time of commission and the time of sentencing.

The rights in s. 11 are a response to inherent inequalities in the criminal justice system. When an individual is charged with a crime, he or she is suddenly thrust into a legal battle with the state. However, the state has significant financial, investigative, and prosecutorial resources, giving it a considerable advantage. The rights enshrined in s. 11 provide the accused person with constitutional protection throughout his or her prosecution to offset this advantage.

If the state fails to meet its obligations under s. 11, a criminal defence lawyer can raise the issue at trial in order to argue that the accused person has been unfairly treated by the state. This will sometimes lead to a remedy under s. 24 of the Charter (see our blog on Charter Remedies).

Section 11(a): The right to be informed without unreasonable delay

Section 11(a) of the Charter is premised on the legal principle that every accused person is entitled to know the nature of the allegation against them at an early juncture so that they can make informed decisions in their defence. This is an essential aspect of the common law conception of a “fair trial”. It would be absolutely impossible for an individual to begin to prepare a defence if he or she did not know the charge against him or her. Thus, s. 11(a) ensures that an individual is able, along with a criminal defence lawyer, to begin to prepare a defence as soon as they are arrested.

In The Queen v. Nijhar the Supreme Court of Canada confirmed that if multiple charges have been laid against the accused, an agent of the state must inform the accused of all the charges. The Charter does not require that the accused be notified of the charges in writing. Section  s. 11(a) guarantees the right to be informed of the specific offence an individual is charged so that they are in a position to refute and respond to the specific allegation as opposed to criminal activity generally.

Section 11(b): the right to be tried within a reasonable time

Section 11(b) provides that every person has a right to be tried within a reasonable time. What constitutes a reasonable time will vary from case to case. However, generally speaking, this provision protects against unnecessary, irresponsible or flagrant delay on the part of the prosecution. In R. v. Rahey, the Supreme Court explained that s. 11(b) “protects against an overlong subjection to a pending criminal case and aims to relieve against the stress and anxiety which continue until the outcome of the case is final”. Without s. 11(b) the state would be free to cause unnecessary delay for strategic reasons, and the individual would have no recourse where a prosecution is less than diligent. Section 11(b) ensures that a prosecution moves along at a reasonable pace without undue prejudice to the person who is the subject of the prosecution. This Charter right recognizes that criminal proceedings are very stressful and disruptive to an individual’s life, and seeks to minimize that effect.

In R. v. MacDougall the Supreme Court confirmed that that the s. 11(b) right applies until the individual has been sentenced. Thus, the protection in s. 11(b) could be invoked to remedy an unreasonable delay between judgment and sentencing.

Section 11(c): the right not to be compelled as a witness in a proceeding against you

Section 11(c) is the constitutional recognition of the common law principle against self-incrimination. The purpose of s. 11(c) is to prevent the prosecution from forcing individuals to supply the evidence that could be used to convict him or her. Historically, Canadian society has considered self-incrimination to be an affront to the every human being’s inherent right to personal dignity and privacy. Section 11(c) is closely related to the right in section 11(d), which states that every individual is presumed innocent until proven guilty. Together, ss. 11(c) and (d) create a constitutional obligation on the state to prove their case beyond a reasonable doubt. In practice, this right guarantees that the Crown cannot force you to testify as a witness at your own trial. The decision to testify in your own defence rests entirely with you. Every defendant is entitled to refrain from testifying. The court cannot infer guilt from an accused’s decision not to testify at his own trial.

Section 11(d): the right to be presumed innocent until proven guilty in a court of law

The Supreme Court of Canada has referred to this constitutional right as “the golden thread” that runs through the criminal law. The burden is always on the prosecution to prove a criminal case. The presumption of innocence acts as a shield to protect an individual where the evidence falls short of proof beyond a reasonable doubt. Section 11(d) entrenches the long standing common law principle that no person can be convicted if there exists a reasonable doubt that they committed the offence. It is because of s. 11(d) that the court is constitutionally required to prove every element of the offence beyond a reasonable doubt and also to disprove the validity of any defence beyond a reasonable doubt. The Supreme Court has ruled that it would contravene s. 11(d) if the defence was required to disprove an element of the offence or to prove the existence of a defence. Thus, at minimum, the defence must show that the case, as presented by the prosecution, leaves a reasonable doubt as to whether the defendant is guilty.

Section 11(e): the right not to be denied reasonable bail without just cause

Section 11(e) is also closely related to the right to be presumed innocent until proven guilty. Section 11(d) tells us that every individual must be presumed to be innocent and section 11(e) speaks to the issue of an accused person’s liberty before trial. Generally speaking, innocent individuals should not be deprived of their liberty prior to conviction for the offence. Section 11(e) guarantees every person’s right to liberty as they await a criminal trial. For obvious public safety reasons, in some cases it is impossible to allow the defendant to remain at liberty. That is why s. 11(e) allows the state to continue to detain the individual in some cases – but only when they have “just cause”.

The term “reasonable bail” refers to the terms of the bail, such as the quantum of bail and the restrictions placed on the accused’s liberty while he or she awaits trial. These must be “reasonable” so as to avoid infringing on the accused’s liberty in an unfair or arbitrary manner. The requirement that the state have “just cause” refers to the right to be released on bail. According to the Criminal Code, there are only three reasons that the accused may be denied bail: if he or she is a danger to the public safety, if he or she is likely to flee the jurisdiction, or if his or her release would erode public confidence in the administration of justice (see our blog, “Bail: the Tertiary Ground for more information). If the Crown can establish that any of these three grounds are present in the case at bar, that will constitute “just cause” for denying bail.

Section 11(f): The right to be tried by jury for any offence where the maximum punishment is imprisonment for five years or more

Section 11(f) gives the denfendent the right to elect to be tried by jury if they are charged with a crime for which the maximum punishment is more than five years. For administrative reasons, it is virtually impossible to allow individuals to elect to be tried by jury for minor offences. However, the right to be tried by a jury of your peers is one of the oldest and most important common law principles. Since the decision of a jury must be unanimous, juries add  an institutional safeguard to the trial process by requiring the prosecution to convince twelve individuals of the defendant’s guilt – instead of just one judge. Section 11(f) recognizes the benefits of trial by jury and allows the accused to take advantage of those benefits.  However, the defendant is free to choose to forego the “benefit” of a jury, if he or she feels it is in his or her best interest to do so. Though trial by jury is generally an advantage for the accused, criminal defence lawyers tend to recommend that the accused waive his or her right to be tried by jury in certain situations, for example, when a person is accused of a particularly shocking and horrendous crime which might prejudice the jury against the accused such as a sexual or violent crime against a child.

Section 11(g): The right not to be found guilty on account of any act or omission unless that act or omission constituted an offence under Canadian or international law at the time the act was committed

Section 11(g) contains a simple but important right. Because of s. 11(g), the criminal law can never apply retroactively. Essentially, this means that no person can be convicted of an  action alleged to constitute an offence that was not illegal at the time the defendant committed it. For example, if the government were to pass a law tomorrow saying that it is illegal to purchase a handgun, it could not then arrest every individual who purchased a handgun before the law was enacted. It could only arrest those individuals who purchase handguns after the law comes into force.

Section 11(h): the right not to be tried again for an offence for which you have already either been acquitted or convicted and punished

Section 11(h) essentially enshrines what criminal lawyers and other legal professions refer to as the rule against “double jeopardy”. This rule means that an individual cannot be tried a second time for the same crime on the same set of facts. If the individual was acquitted of the crime, he or she cannot be tried again, even if the police find new evidence against the person.

However, the double jeopardy principle does have some important qualifications. Unlike in the United States, in Canada the double jeopardy principle does not prevent the prosecution from appealing an acquittal at trial. In the US, if the accused is acquitted at the trial stage, the District Attorney’s Office cannot appeal the acquittal to a higher court (if the accused is convicted at trial, he or she does have the right to appeal). In Canada, the Supreme Court has ruled that s. 11(h) does not apply until the trial has been “fully concluded”. A trial cannot be fully concluded until either side has exhausted its ability to appeal. Thus, any appeal is deemed to be an extension of the trial and not a new trial. The Court of Appeal does not have the power overturn a verdict and enter a new verdict. At most, the Court of Appeal can order that a new trial be conducted. The Supreme Court has likewise ruled that a new trial in these circumstances is an extension of the original trial and does not constitute a breach of s. 11(h). Moreover, if you are tried for a criminal offence, s. 11(h) does not preclude you from facing other types of legal proceedings arising out of the same facts that led to your criminal charge. For example, if you are convicted of assault in a criminal court, the victim can sue you in the civil court and the civil suit will not constitute a breach of s. 11(h).

Section 11(i): the right to benefit from the lesser punishment in situations where the punishment for the offence has been varied between the time of commission and the time of sentencing

The final right articulated in s. 11 of the Charter is relatively straightforward. It simply states that where the punishment has changed between the time the offence was committed and the time a person is sentenced, the lesser punishment applies at the time of sentencing. This only applies until the time of sentencing. If the law is changed to impose a lighter penalty after the defendant is sentenced, he or she cannot invoke s. 11(i) to appeal his or her sentence. Finally, s. 11(i) has no application to civil penalties even if they flow from a criminal conviction (for example, the suspension of an individual’s driver’s license after a impaired driving conviction).

Know your Charter rights. Call Kostman and Pyzer, Barrisers, toronto criminal lawyers who are experienced and skilled. 416-658-1818

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.

By-line:

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

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

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

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

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

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

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

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

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

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

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

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

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

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