Toronto Criminal Lawyers Blog

Section 11 of the Charter guarantees every individual certain rights when they are charged with a criminal offence. Section 11 applies to all types of offences (criminal, quasi-criminal, and regulatory offences). Section 11 protects individuals as they navigate their way through the criminal justice system, from the moment they are charged until their matter is resolved. Different rights attach to the individual at different stages of the proceedings. There are nine specific rights enumerated in s. 11:

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

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

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

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

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

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

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

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

By-line:

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

There is no explicit prohibition against “prostitution” in the Criminal Code of Canada. In other words, the specific act of engaging in sexual activity for money or any other form of consideration is not itself illegal. However, there are several offences associated with prostitution, which do attract criminal liability.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

A Peacebond is a court order requiring a specific individual to “keep the peace and be of good behaviour”. A peacebond is not a conviction and it will not appear on your criminal record.  However, a peacebond can restrict your liberty. Sometimes, in addition to requiring that the recipient “keep the peace and be of a good behaviour”, a peacebond will also set out specific conditions intended to protect a person or a specific type of property. Generally speaking, a s. 810 peacebond is Canada’s version of a “restraining order”. The most common conditions contained in peacebonds require that the recipient not be within a specific distance of a particular person or that person’s family, refrain from going near a person’s property, not communicate with a specified person or that person’s family, and/or that the recipient not be in possession of any weapons or firearms. A peace bond can be issued either under s. 810 of the Criminal Code or under the common law.

Section 810 Peacebonds

Section 810 allows any individual to apply to the court for a peacebond against any individual whom they reasonably believe poses a threat to their personal safety, the safety of their spouse or child, or their personal property. An application can be made at any time and it is not necessary for the applicant to initiate criminal proceedings against the potential recipient. The main requirement is that the applicant fears, on reasonable grounds, that the potential recipient may hurt the applicant, in some way. This includes not only physical harm but also harm of a sexual nature and damage to property. Section 810 specifically requires that the applicant’s fear be based on “reasonable grounds”. A judge will determine whether the applicant’s fear is reasonable on a case-by-case basis taking into account several factors such as: any threats made by the potential recipient, any past violent behaviour on the part of the potential recipient towards the applicant or others, the relationship between the applicant and the potential recipient, and any other relevant factor. If the judge is satisfied that it is more likely than not that the potential recipient poses a harm to the applicant, the judge will order that the defendant enter into a peacebond to keep the peace and be of good behaviour. Once the judge is satisfied that a s. 810 peacebond should be issued, i.e., that the recipient poses a threat to the applicant in some way, he or she is obligated to consider including conditions limiting the recipients ability to interact with the applicant, communicate with the applicant, or posses any weapons or firearms.

Section 810 also includes special rules for applicants who reasonably fear that another individual may commit an act of terrorism, a sexual offence against the applicant, or inflict serious personal injury to the applicant.

Common Law Peacebonds

A common law peacebond, on the other hand, can only arise in the context of a criminal trial. Every judge has what is known as a “common law power” to order that a defendant enter into a peacebond. Thus, even if a judge is not satisfied beyond a reasonable doubt that a defendant in a criminal matter is guilty, that judge may issue a peacebond against the defendant to protect the complainant from any future harm or retaliation for laying criminal charges. In situations like this, the peacebond is not a finding of guilt and will not appear on the defendant’s criminal record. In minor cases, the Crown Attorney’s office may withdraw a charge in exchange for the defendant agreeing to enter into a peacebond. However, according to the Crown Policy Manual, the Crown Attorney’s Office will agree to a peacebond as an acceptable remedy for domestic abuse only in “the most unusual of circumstances”.

A section 810 peacebond can be issued for a maximum of one year, while the duration of a common law peacebond is at the discretion of the court. The conditions contained in the peacebond can be relaxed at any time during the life of the peacebond. A criminal defence lawyer can help you to negotiate with the Crown Attorney’s Office to relax the terms of either type of peacebond. If a peacebond is ordered against you and you refuse to enter into the peacebond (by refusing to sign it) you can be charged under the Criminal Code and liable to 12 months imprisonment. Failing to comply with the conditions of a peacebond is also a criminal offence.

Sexual assault is a criminal offence under s. 271 of the Criminal Code. Sexual assault is defined as any form of sexual contact without the consent of either party involved in the “sexual” activity.

Consent is a defence to sexual assault. If the accused and their criminal defence lawyer can satisfy the court that the complainant actually consented to the sexual act, the accused will not be found guilty of sexual assault.

According to s. 273.1(1), “consent” is defined as the voluntary agreement of the complainant to engage in the sexual activity in question. To constitute consent for legal purposes, the complainant must have consented voluntarily; thus, consent is meaningless if it is obtained through threats. Moreover, the complainant must have consented to the specific sexual activity the court is considering. Thus, it is not a defence that the complainant consented to sexual activity with the accused in the past. He or she must have consented to the specific sexual act that is alleged to be objectionable.

Moreover, there are several situations in which the court deems that consent is “vitiated” – in other words, though it may seem that the complainant consented, his or her consent “doesn’t count” as a defence to sexual assault where the “consent” in not voluntary and with full knowledge of the nature of the sexual act. Under s. 273.2, consent is “vitiated” in a number of ways:

(1)  If the complainant is “incapable” of consenting because he or she is not old enough, or unable to understand due to extreme mental or physical disability, consent is vitiated by law. However, there are other special sections of the Criminal Code dealing with sexual assault against minors or the disabled, so the issue of consent would have to be considered in the context of the special rules associated with those offences, and the specific ages of the alleged offender and the complainant.

According to legal precedent, a complainant is “incapable” of consenting to sex if he or she is so intoxicated that his or her consent is meaningless. Thus, if the Court determines that the complainant was so intoxicated that he or she could not possibly have comprehended the significance of giving consent – even if it seemed to the accused at the time that the complainant was consenting – the consent will not count as a defence to sexual assault. However, where the accused has a mistaken but honest belief in consent and that belief is held on reasonable grounds, they cannot be convicted, since there is a lack of mens rea or criminal intent.

(2)  Consent is also vitiated if the accused is (a) in a position of trust, power, or authority, and (b) he or she uses that position to induce the complainant to perform sexual activity. This section applies to teachers, bosses, psychiatrists, doctors, and other individuals who have a relationship of power, control, or dominance over the complainant. The person must not only be in a position of power, but must abuse that power to convince the complainant to consent to sex.

(3) Consent can also be vitiated by conduct. Thus, even if the complainant says the word “yes”, but expresses somehow by words or actions that he or she actually means “no”, the consent will not count at law. Moreover, if part way through the sexual act, the complainant expresses through words or conduct, that he or she did not wish to continue, any sexual activity after that point will be considered non-consensual.

(4)  The court must also consider the accused’s own mental state to determine whether consent is a valid defence. The defendant cannot claim that the complainant indicated consent through words or actions if the accused’s belief in consent arose from his or her own self-induced intoxication or recklessness or willful blindness. In other words, if the accused went through with the sexual activity without any regard to whether the complainant was consenting (recklessness), or purposefully ignoring any signs that the complainant might not be consenting (willful blindness), then consent is vitiated. Moreover, if the accused was so drunk that they didn’t pay attention to whether the complainant was consenting, this is not a defence to sexual assault. If, however, the accused became intoxicated through no fault of their own, for example, if their drink was drugged at a party, the court may take this into account when deciding whether to accept the defence.

As a general rule, under s. 272.2(b), the accused is under a legal obligation to take steps, in the circumstances known the accused at the time, to ensure that the complainant consents to the sexual act.

Finally, under s. 265(2), consent is vitiated if the complainant only consented to sexual activity because of fraudulent representations made by the accused. Thus, if the accused committed fraud in order to obtain consent, the complainant’s consent would not “count”. However, only certain types of fraud vitiate consent. These are fraud as to the actual nature of the act or any bodily harm that might result from the act.  For example, if a doctor told his patient that he was performing a medical procedure to obtain her consent and then actually committed a sexual assault, that would constitute fraud as to the nature of the act, and the patient’s consent would be vitiated. Or, if the accused told the complainant that the sexual activity they were going to engage in would not be violent, and then proceeded to act violently, the complainant’s consent would be vitiated due to fraud. However, if the accused simply lied about their name, age, marital status, job, or other personal details, this would not constitute fraud for the purpose of vitiating consent.

There is some case law supporting the argument that lying about your HIV status constitutes a form of fraud which can vitiate consent. Thus, if the complainant consented to sex based on the accused’s statement that he or she was not HIV positive, consent would be vitiated due to fraud and the accused would likely be found guilty of sexual assault. Recently, there have been prosecutions of individuals for sexual assault and criminal negligence causing harm or death, where the accused was HIV positive and did not disclose that fact to his partner prior to unprotected sexual activity.

There is confusion amongst members of the public as to whether or not simple possession of marijuana is illegal. This confusion has been caused by various court decisions and a policy of discretionary enforcement by the police. Simple possession of marijuana, possession for the purpose of trafficking, and production of marijuana are illegal in Canada. The law as it relates to simple possession of cannabis (less than 30 grams for personal use) is contentious in some areas. It is important to note that, in 2007 Toronto Police spokesman Mark Pugash said that, despite some discrepancies in the law, nothing will change about how the police deal with marijuana for the time being. Thus, while this article provides a helpful summary of the evolution of the law with regards to marijuana in Canada, we suggest that you do not change your personal practices based on the information contained in this article. One should remember that although even the various police associations have recommended decriminalization, possession is still illegal, and a finding of guilt in relation to simple possession of marijuana can have far reaching consequences.

Medical Marijuana

In the 2000 decision, R. v. Parker, the Supreme Court of Canada declared that the law against possession of marijuana violated the Canadian Charter of Rights and Freedoms insofar as it failed to create an exception for medicinal marijuana use. The defendant, Terrance Parker, suffered from severe epilepsy. He tried to control his seizures through conventional medicine and surgery but found that neither improved his condition as much as smoking marijuana. He grew his own marijuana plants since there was no place where he could legally obtain the drug. Twice, the police raided his home, confiscated his marijuana and he was charged with production of marijuana. At trial, he argued that the law prohibiting marijuana possession infringed his s. 7 Charter of Rights right to “life, liberty, and security of the person”. The Ontario Court of Appeal considered both the harmful and therapeutic effects of marijuana and came to the conclusion that the law against possession of marijuana for therapeutic/ medical purposes was unconstitutional. The Court declared that Parker should be able to make choices about his medical treatment as those decisions would greatly affect his overall health. The law against possession interfered with Parker’s security of the person by depriving him of the ability to make decisions that would affect his physical and psychological integrity without fear of criminal prosecution. Moreover, the court found that the “blanket provision” on marijuana possession, without an exception for medical use, did not enhance the interests of the state and therefore there was no justification for interfering with Parker’s right to make decisions over his own healthcare. However, the Court also found that the prohibition on marijuana for recreational use did enhance state interests by preventing the harms associated with marijuana. The court concluded that s. 4 of the Controlled Drugs and Substances Act, the prohibition against possession of marijuana, was too broad in that it did not contain an exception for medicinal use of marijuana. The court declared the section invalid, but suspended the declaration of invalidity for one year to allow Parliament an opportunity to draft a new prohibition that included in it an exception for medicinal use.

The government of Canada responded swiftly to the decision in R. v. Parker. In July of 2001, Health Canada issued a set of regulations giving individuals access to marijuana for medical purposes. The Medical Marijuana Access Regulations, which went into effect July 31st, 2002, outlined two categories of individuals who may legally access marijuana prescribed by their doctor. Category 1 patients include:

·      Individuals suffering severe pain from multiple sclerosis, spinal cord injury, or spinal cord disease,

·      Individuals suffering severe pain, cachexia (loss of body mass that cannot be reversed nutritionally), anorexia,            weight loss, and/or severe nausea from AIDS or cancer,

·      Individuals suffering severe pain from arthritis, and

·      Individuals suffering seizures from epilepsy.

Category 2 allows individuals suffering from debilitating symptoms from medical conditions (most commonly severe pain), other than those described in category 1, to apply to Health Canada for access to medicinal marijuana. Category 2 individuals must have the support of a medical practitioner. Individuals who have a condition described in category 1 or who are approved under category 2 can legally obtain medicinal marijuana distributed by the company CannaMed or can grow their own for personal consumption. It is also possible to become a licensed grower for others with medicinal need.

Thus, it is possible to have legal access to marijuana for medical purposes in Canada. More controversial is recent legal opinion on the legality of recreational use of marijuana.

Recreational Use

Ever since marijuana was criminalized in Canada in 1923 there has a strong opposition movement that continuously advocates for legalization or decriminalization of the drug. As early as 1972 Canada’s Le Dain Commission recommended the decriminalization of cannabis. Legalization advocates often point out that the drug is no more harmful than alcohol or tobacco and should therefore be regulated in a similar fashion.

Activists and litigants usually make one of two constitutional arguments in favor of cannabis legalization.  First, many marijuana activists claim that smoking marijuana is not really an act of a criminal nature and as such the federal government does not have the authority to ban it under the criminal law power. The Constitutional Act of 1867, divides law-making power between the federal government and the various provincial governments. The federal government has jurisdiction over all matters of criminal law, whereas the Provincial governments have law-making power over issues dealing with property and civil rights. Many marijuana activists claim that banning marijuana is not actually a matter of criminal law since smoking marijuana is neither harmful nor immoral. They further argue that regulating marijuana is rightly a property issue and that as such only the province has the power to regulate the use, distribution, and sale of marijuana. This argument would equate marijuana with alcohol, which is also regulated independently by the governments of each province.

Courts have, for the most part, rejected this argument and concentrated on the harmful effects of marijuana such as health effects for users, international effects of drug trafficking around the world, and issues with production and trafficking and their relationship to terrorism and organized crime both in and outside of Canada, to continue to view marijuana as a criminal issue.

Nonetheless, there has been some support from government sources for the view that marijuana is not harmful and should be treated on par with tobacco and alcohol, rather than under the matrix of the Controlled Drugs and Substances Act. For example, in September of 2002, the Special Senate Committee on Illegal Drugs reviewed Canada’s anti-drug law and concluded that marijuana is not a gateway drug and should be treated more like tobacco or alcohol than harder drugs such as cocaine or heroin.  Their report stated that, “the continued prohibition of cannabis jeopardizes the health and well-being of Canadians much more than does the substance itself.” In response, the House of Commons Special Committee on the Non-Medical Use of Drugs did an overall audit of Canada’s drug strategy and concluded that though marijuana is unhealthy, the criminal penalties for possession and use of small amounts of cannabis at the time were disproportionately harsh. The Committee recommended that the Canadian Minister of Justice and Minister of Health create a strategy to decriminalize possession and cultivation of a specified amount of marijuana (less than 30 grams for personal use).

Following the Committee’s recommendations, the Chrétien government introduced several versions of a bill to decriminalize simple possession of marijuana from 2002 to 2003. This effort was originally geared towards decriminalization, but as time moved on, the focus shifted to prescribing alternative penalties; fines rather than criminal charges would be prescribed when individuals were found with small amounts of marijuana. To date, the federal government has not followed through with Bill C-17. The current Harper administration has instead proposed Bill C-15, which proposes to create mandatory minimum sentences for production of marijuana. If Bill C-15 passes into law, individuals convicted of growing even one marijuana plant would face a mandatory minimum of six months imprisonment. Bill C-15 has been passed in the House of Commons and is currently under review in the Senate. Bill C-15 seems to indicate a sharp change in the Canadian government’s attitude towards small-scale marijuana use.

The second common argument legalization activists make is that the law against simple possession of marijuana violates the Canadian Charter of Rights and Freedoms in some way. During the last 5-10 years, there have been judicial decision decisions both affirming and rejecting the argument that the law against recreational use of marijuana violates the Charter. This has led to some confusion over the legal status of marijuana.

In January 2003, an Ontario provincial court judge, Justice Douglas Phillips, declared in R. v. J.P. that, based on the ruling in R. v. Parker, s. 4 of the Controlled Drugs and Substances Act [CDSA] dealing with simple possession of marijuana was invalid. As mentioned above, in the Parker case, the Ontario Court of Appeal declared that s. 4 of the CDSA was invalid in that it did not create an exception for medicinal marijuana. The court then suspended the declaration of invalidity for one year to give the government a chance to draft an alternative provision. In response to Parker, the Canadian government enacted the Medicinal Marijuana Access Regulations; however, it never enacted an amended version of s. 4. Justice Phillips concluded that, as of July 31st, 2001 – when the one-year suspension on the declaration of invalidity ended – s. 4 was officially declared invalid and therefore no longer had any legal effect. Just nine months later in October 2003, the Ontario Court of Appeal reversed Justice Phillips decision in R. v. J.P. The court said that, while the medicinal marijuana regime needed to be improved, the law against recreational marijuana was constitutional despite the defendant’s argument that it violated s. 7 of the Charter.

In December 2003 the s. 7 question finally came before the Supreme Court of Canada in R. v. Malmo-Levine. Section 7 of the Charter of Rights declares that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The defence argued that, by attaching a criminal penalty of imprisonment to simple possession of marijuana, s. 4 of the CDSA deprived him of liberty in a manner that is not in accordance with the principles of fundamental justice. The defence suggested that it is a principle of fundamental justice that the criminal law can only prohibit activities that cause some sort of harm. The court disagreed, concluding that while the “harm principle” may be one consideration legislators take into account when enacting laws, it does not constitute a “principle of fundamental justice”. Moreover, the court said that while arbitrary or irrational laws could be quashed under s. 7, the prohibition against simple possession of marijuana was neither irrational nor arbitrary. Malmo-Levine also failed to convince the court that the penalties associated with marijuana were unconstitutional pursuant to s. 12 of the Charter (the prohibition against “cruel and unusual punishment”) or s. 15 of the Charter (the equality provision). The court unanimously ruled that the law against recreational use of marijuana did not violate the Charter in any of the ways suggested by the defence in Malmo-Levine.

Barely four years later, in 2007, the constitutionality of the law against simple possession came before the court again in R. v. Long. A judge of the Ontario Provincial Court found that the law against simple possession was unconstitutional in that it did not contain a specific exemption for medicinal marijuana. Like in R. v. J.P., the judge in Long believed that the policy remedies introduced by the government through the Medical Marijuana Access Regulations, the Interim Supply Policy, and the Policy on the Supply of Marihuana Seeds and Dry Marihuana, did not address the specific problems in the wording of s. 4 of the CDSA. However, in 2008, the Ontario Superior Court of Justice reversed the decision saying that the circumstances resulting in s. 4 being found unconstitutional in Parker had been remedied by the Regulations and Policies mentioned above.  As a result, the Court held, the current s. 4 provision is constitutional.

Thus, the law against simple possession seems to be continuously evolving. Different judges have different interpretations of the law and criminal defence lawyers are constantly advancing new and creative arguments attacking the constitutionality of the law. Nonetheless, for the time being, simple possession of marijuana remains illegal.

One of the first questions a client asks whcn charged with Domestic Assault is if there is any way that they could “get” a Peace Bond. Of course, in most  cases of domestic assault the Peace Bond is a happy ending. The charge is withdrawn. The accused avoids a criminal record. Life returns to normal. In some cases the parties have reconciled. Often, the relationships that gave rise to the allegations, cannot survive the test of bail orders restricting contact and the fact that the complainant made the accusation to the police.

The reality in the present criminal justice system is that Peace Bonds are very hard to obtain in the context of a domestic assault allegation. In some jurisdictions, it is almost impossible to obtain a Peace Bond prior to a trial date. On the trial date, where the prosecutor is of the view that the evidence in support of the allegation is not strong enough for a Court to convict, the client may be offered a Peace Bond. The nastier the allegation, the more likely that the prosecutor is going to let the Court make the call rather that be critized later if the Peace Bond creates a controversy.

Generally speaking, given the current political landscape of the offence of Domestic Assault, a Peace Bond is only available in the most minor cases. Threats of violence without any violence, or history of violence, may qualify,. This is  especially true if the allegation is of a he said she said nature, and unsupported by corroborative evidence. In these cases, the prosecution is aware of the fact that a conviction is unlikely.

A Peace Bond may also be available if the nonconsensual touching is viewed as very minor, and there is no history of violence between the parties. A push. Sometimes a slap. The fact that the accused has some indication of bruising can also be a factor which may influence a prosecutor to exercise their discretion to agree to a Peace Bond. The accused’s bruises would advance his defence that the complainant was the aggressor and he was acting in self-defence.

Most courthouses in the Greater Toronto area have one or two domestic assault court days wherein those individuals charged with domestic assault related offences, appear. In the current prevailing politic individuals charged with domestic assaul are generally offered a quick exit from the justice system. Where there is no history of domestic violence,and so long as there is no significant injury to the complainant, the average accused person is offered a conditional discharge (a guilty plea which is not technically a criminal record). The bail is varied to allow the parties to reconcile (with the complainant’s written consent). After the person completes the four month one night per week Partner Assault Response Spousal programme (anger management in a spousal context), they are placed on Probation.

At Kostman and Pyzer, Barristers, we are well informed, experienced, and familiar with the politic underlying Domestic Assault prosecution policies.  We can’t promise you a Peace Bond, but we can advance a strong argument that one should be available in the particular circumstances of your case.